NJ Family Legal Blog : New Jersey Divorce and Family Lawyer & Attorney : Fox Rothschild Law Firm : Domestic Violence, Prenuptial Agreements, Child Custody

As we were sitting in the Courthouse waiting for a hearing with the Court, a client once said to me, "you are too nice" after I had said "good morning" to our adversary. I guess from the perspective of a litigant, it seems odd that their attorney would actually have an amicable relationship with the "enemy". However, litigants need to understand that the conduct of their attorneys can impact the outcome of their case-- being unfriendly and belligerent certainly does not score points for the Judge and fighting for the sake of fighting totally detracts from what should be the most important focus of the divorce, the Litigant and the Litigant' s rights and needs.

I had an adversary several years ago who was extremely belligerent both in and out of the courtroom. While initially, this attorney's client believed that the attorney was "protecting his interest" and was being very "aggressive", as the case progressed, the client learned (the hard way) that such an approach did nothing but to deter from the real issues in the case while increasing the cost of the litigation.  Each case is supposed to be about the litigant and the important issues impacting the litigant's family and not about the "battle". Divorce litigants should hire attorneys for two reasons (1) the attorney knows the law and (2) the attorney will be objective.  If objectivity is lost, the other side will surely find benefit.

 

In short, your interests aren't being protected if the focus of your case is the fight.  "The best victory is when the opponent surrenders of its own accord before there are any actual hostilities... It is best to win without fighting." The Art of War, Sun Tzu 600 B.C

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Previously I blogged on the issue of mediation and my skepticism of the process under certain circumstances.  This week there was a spirited discussion regarding the issue of mediation on the New Jersey State Bar Association Family Law Section listserve.  As a result, I thought it would be wise to highlight some of the issues again.

To frame the issue, the bigger debate surrounded the practice where a couple goes directly to a divorce mediator or some other trained mediator, without attorneys.  Some of the things that raised concern were as follows:

1. Some mediators are concerned not whether the mediation is fair, but rather, simply that the parties reached a settlement
2. Number 1 would be less troubling, except that many mediators are not telling the party receiving an unfair deal that it is unfair
3. Rather, apparently, for many mediator's, the phrase, "I think you should discuss this issue with a lawyer" is code for the resolution of this issue or this case is unfair.  However, people go to mediators to avoid lawyers and/or there is an undercurrent among mediators that divorce lawyers really are not looking out for the parties' interests.  Moreover, some parties think that if a mediator is not putting a stop to the mediation when something is unfair, that it must be fair.

There was also a concern that the imbalance of power in the marriage that naturally is creeping into the mediation is being ignored.  A perfect example is in a case where alimony, perhaps permanent alimony is a no brainer, yet the wife is willing to waive it in mediation.  Is anyone asking why?  Did the husband vow to never pay alimony?  Was there a threat to "go after custody" if a spouse sought alimony?  Did one spouse say "I spoke to a lawyer who said you weren't entitled to alimony" as a means to deter the other spouse from seeking it?  Was the other spouse given access to money to consult their own attorney?  I once represented a woman in a post-judgment matter whose husband would not give her money for the attorneys she wanted to see, only for mediation and then an attorney he hand selected for her to draft the Agreement.  It was not shocking that the "mediated agreement" included a waiver of alimony and the child going to school where the husband lives, when the child was of school age, despite the fact that the wife was the primary caregiver. 

I have also seen many a  complex matter where one party is pushing for mediation and there hasn't even been the most basic exchange of information at that time, much less formal discovery. I have even seen cases where the party with the documents will not provide them in advance of mediation and will only bring them to mediation and take them with him at the end. The better practice, and the better mediators require, parties to have attorneys involved from the start of the mediation so that both parties are fully informed about the law and the process and so that any imbalance of power can be rectified with an attorney protecting the weaker party.

There is no doubt that mediation and other methods of alternate dispute resolution can be a good thing.  That said, I have often seen mediations result in a "settlement", but one where the disadvantaged spouse got a "deal" that was neither fair nor reasonable, if not unconscionable. The problem in these cases is that often, once there is an "agreement", the person that got the great deal refuses to concede anything. Thus, a method meant to avoid litigation can often create litigation.

 

 

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Mark Ashton, a partner in our Exton, Pennsylvania office, and the editor of the firm's Pennsylvania Family Law blog, wrote an excellent post on that blog entitled, "Sizing Up the Litigation:  An Examination of Cost vs. Benefit.  To read the post, click here.

The point of the post is that a litigant should choose their battles wisely, recognizing the potential costs. I often tell clients that it does not make sense to spend $2 to get $1, or for that matter, to spend $1 to get $1.  As Mark states, there are times to fight over principle.  A litigant needs to weigh when it makes sense to fight over principle, or choose to fight another day over something more important financially.

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Especially now in the current economic climate, people are looking for ways to save money in discovery at trial. In fact, my partner, Jennifer Weisberg Millner recently blogged about this.

In an interesting recent Appellate Division case, not related to family law, but interesting nonetheless, the Appellate Division held that Wikipedia was too malleable to be reliable as evidence.  In that case, the plaintiff relied on a Wikipedia entry to help trace ownership of a credit card debt in order to establish standing to bring suit.  While the trial court allowed this, the decision was reversed by the Appellate Division. 

The rationale for the decision is that anyone can edit Wikipedia and the site itself contains a disclaimer that content may have been recently changed, altered or vandalized.  Thus, while the Rules of Evidence allow judge's to take judicial notice of specific facts and propositions of generalized knowledge capable of immediate determination by resort to sources whose accuracy cannot reasonably be questioned, Wikipedia was determined to not be one of those sources. 

The lesson to be learned from case is that if you intend to rely on something from the internet, make sure that it is reliable and cannot be questioned.

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In this day and age, marriages involving people of different religious in no longer uncommon.  In some of these families, the parties choose one religion to raise the children in.  Sometimes even, one parent converts to the other's religion.  In other cases, the parties and the children observe both religions.

The question is what happens when the parties divorce?  What happens if one parent converts to another religion post-divorce and wants the children to similarly convert.  Though it seems as though this would be a complicated issue, in reality, the answer to the question is relatively easy. 

Specifically, under NJ law, the primary caretaker has the right to determine the religious upbringing of the children in their custody and courts will not interfere in that parent's decision regarding religious training for the children.  The policy behind this judicial reluctance to interfere with the religious training of children is that it is in the best interests of the children that the custodial parent be allowed to determine their religious upbringing. 

This principle was confirmed by the Appellate Division in a case where the parties were Protestant and raising the children in that religion before the divorce.  After the divorce, the mother converted herself and the children to Orthodox Judaism.  The mother, however, was not allowed to use the religion to interfere with the father's time with the children.  Moreover, the father could expose the children to his religion when they were with him but was not allowed to educate them in his religion.

Simply put, the custodial parent can determine the children's religion - the non-custodial parent can expose, but not formally educate the children in that parent's religion. 

The Court's have been clear that this has nothing to do with the preference of one religion over another. Rather, it is consistent with the law in general that gives custodial parents final say in decisions regarding children, even where there is joint legal custody, because that parent is presumed to know more about and be more in tune with what is in the children's best interests.  This principle has been applied to disputes ranging from religion to those involving elective medical procedures such as a nose job. 

While this issue does not come before the Court all that often, as noted above, the law is well settled in this area and pretty straight forward.

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 Last week I spoke at a seminar for family lawyers on the topic of discovery and experts in the current economic environment. As we wade through this financial crisis, the cost of a divorce, or other family litigation is yet another area in which we must look carefully at how we allocate our clients’ limited resources. 

The discovery phase of litigation is one in which a client can help his or her lawyer to effectively allocate limited resources simply by being organized and making sure that the attorney gets needed information early on in the process. For example, in every divorce, past bank statements and credit card bills will be requested. Financial institutions are charging significant fees in order to process requests for documents. On the other hand, an account holder can most often obtain statements as well as cancelled check images dating back eighteen months or longer. The simple act of asking your clients to obtain these statements early on can decrease costs. Similarly, if any records can be obtained electronically, this can save on copying costs (and save a few trees along the way).

 

Early and succinct communication with adversaries and experts are also a necessity. Often, litigants each jump to retain their own experts at the start of a case. Certainly, this is very often necessary. However, there are often cases in which a joint expert can perform the work. In some cases, where there is a significant valuation issue, it may make sense to have a joint expert perform the empirical work, and each litigant can hire their own expert to analyze the data.

Custody disputes are another area in which litigants often spend unnecessary amounts of fees. Sometimes, custody evaluations costing in the tens of thousands of dollars are conducted out of anger at the other party more than a bona fide concern about custody. In some counties in New Jersey, Custody Neutral Assessments (CNA’s) are being utilized. These are assessments by a licensed psychologist who has been appointed by the Court to spend four hours with the parties and if appropriate, the children, and provide the litigants with impressions about the custody/parenting time aspects of the case. In many instances, the litigants will read the impressions, get a sense of where the case is going and then will be able to resolve the case.

 

This is not an exhaustive list, but merely some thoughts on how an attorney can work with the client and be sensitive to the financial realities that we are experiencing. An open conversation with your attorney as well as a willingness to explore some innovative methods of obtaining information can, in many cases, relieve some of the pressure.

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 We have previously blogged on the issues of counsel fee awards and a trial court's decision to grant or deny a party's request for oral argument on a pending motion.  Two of these prior postings can be found here and here.  Both of these issues framed the Appellate Division's recent unpublished opinion in Bove v. Bove, found here. 

The parties at issue were divorced on June 28, 2001 and three children were born of the marriage (two adult sons and a 16-year old daughter).  A supplemental Judgment of Divorce established that the Wife would have sole physical custody and the parties would share joint legal custody.  Additionally, the Husband was required to create trust funds for the children's college expenses and to be responsible for 80% of the daughter's college tuition.

The Wife sought to enroll the daughter in a private high school, informing the Husband that she could not pay for any part of private school tuition, that she was taking the daughter to open houses and that she asked for the Husband's "thoughts on the matter."  The Husband responded in a letter that he would not contribute to tuition prior to college and was displeased that the issue was broached with their daughter before him.  Nevertheless the Wife moved forward with the process and, when the Husband sought to have the Wife confirm in writing that she would not seek contribution from him for high school tuition, she refused.  The Wife also contended that the Husband was using the college trust funds for non-college expenses, as defined by the supplemental JOD, and the Husband contended that the Wife ignored, and then hedged, on his timely requests for vacation with the children. 

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The end of the Court year in  New Jersey in June 30th.  With that will come pressure, perhaps unnatural pressure, but pressure nontheless to resolve cases. 

While the fact that there are judicial shortages in many counties may provide relief, I suspect that it will do little to quell this rite of Spring.

As the legal system is very statistically driven, a court's performance is often measured in how many cases they clear, and more particularly, whether there is backlog (i.e. is the case too old for the case type that it is).  My undertanding is that a divorce case in in back log when it is over 1 year old. 

One tool that Court's use to clear more cases this time of year is to hold "blitz weeks."  During a blitz week, the oldest cases in a county are scheduled for trial and all of the family part judges clear their calendars to allegedly try cases during these weeks.  Whether or not cases actually get tried during blitz week is another story.  However, the threat of trial, along with the court's active assistance in trying to settle cases often clears many cases from the docket.

Also, in the cases that are naturally scheduled for trial during this time of year, adjournments become more difficult.  Regularly, multiple trials are scheduled for a judge for the same day.  The reason for this is that most cases settle or get adjourned so if only one case were scheduled, a judge could have open court time.  Often you will learn where you are on the list in terms of which is the oldest case and can get a sense as to whether the trial date is a real one.  In fact, usually the first and second trial date are not "real" dates, but rather dates when a court will try to get you to settle. 

That said, at this time of year, if you want to try to adjourn these dates, it becomes more difficult, with the hope that you will settle.  There is an old joke that goes, what is the easiest way to get an adjournment, tell the court you are ready for trial.  In reality, it works in the reverse.  That is, when you seek an adjourment of a trial date, courts often deny this expecting that it will help force a settlement. 

In my practice, if I appear for a trial date, I am prepared for trial.  I learned early on that the best way to be prepared to settle a case it to be prepared to try a case.  That way you are negotiating from a position of strength and very often, the other side really isn't prepared for trial  - making favorable settlement terms more likely.

In any event, if your case is getting close to a year old, expect pressure from the Court to get it done before June 30th.

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Mark Ashton, a partner in our Exton, Pennsylvania office, and the editor of the firm's Pennsylvania Family Law blog, wrote an interesting post on that blog entitled Mediate, Arbitrate, Negotiate:  What's a Client to Do?" To read the post, click here.

Mark's blog entry goes through the options of alternate dispute resolution.  Like Pennsylvania, in New Jersey, there is very limited review of an arbitrator's decision.  However, parties can agree to an appeals type process.  However, that appeal would be to a trial court, not the Appellate Division as we recently learned in the reported case of Hoogoboom.  Moreover, in New Jersey, you can mediate, but you cannot arbitrate custody and parenting time disputes.

Also, in my experience, arbitrations are very much like trials with the arbitrator serving as the judge.  While you can agree to relax the rules of evidence and the arbitrator, under the arbitration act can choose to relax the rules, most often unless people agree to proceed in some kind of summary format, an arbitration proceeds in the same manner as a trial in a Court would.

That said, the benefits of an arbitration noted in Mark's post are the same.

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Last week, I authored and released a Family Law Alert regarding the new Guidelines for Child Custody Evaluations in Family Law Proceedings issued by the American Psychological Association Issues. To view a PDF version of the alert, click here.  The full text of the alert is as follows:

The American Psychological Association (APA) notes that parties resolve child custody issues amongst themselves in 90 percent of the cases. When parties cannot resolve custody and visitation issues (called “parenting time” in New Jersey) amongst themselves or after a court’s early intervention program, the next step is to have a child custody evaluation performed by a forensic psychologist. In some cases, the court will appoint this expert. In others, the parties may agree upon a joint expert. In bitterly contested cases, parties often have their own custody expert - and there may also be a court appointed expert.

In 1994, the APA developed Guidelines for Child Custody Evaluations in Divorce Proceedings. The APA issued updated guidelines effective February 21, 2009, which are effective for the next 10 years. These Guidelines consist of 14 individual guidelines that are meant to be aspirational in nature, and not mandatory. Rather, the Guidelines are intended to facilitate the continued systematic development of the profession and a high level of practice by psychologists. The Guidelines were not intended to be exhaustive nor replace the judgment of the psychologist. That said, they provide fodder for cross-examination during a custody trial if the expert is not aware of the Guidelines and/or fails to follow them. A rationale and application is provided for each of the following 14 Guidelines:

1.  The purpose of the evaluation is to assist in determining the psychological best interests of the child. Since the ultimate standard in deciding a custody case is “the best interests of the children,” the Guidelines reinforce that the psychologist should be focusing on the psychological best interests of the children, which is what the Court expects. The Guidelines encourage the expert to weigh and incorporate family dynamics and interactions; cultural and environmental variables; relevant challenges and aptitudes for all examined parties; and the child’s educational, physical and psychological needs.

Litigants going through the process of a custody evaluation should provide the expert with all relevant information regarding these factors. In reviewing the expert report, make sure that the expert has addressed them all. If it is your own expert, you may want to inquire why these issues are not included. If it is a neutral or adverse expert, it is a potential issue to be raised on cross examination. With the neutral expert, you may not want to wait until trial. If any of these factors are important enough to impact the final recommendation, you may want to ask the expert to reconsider his or her recommendation in light of this information.
 

 

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Though we have blogged about this issue in the past, as it is particularly topical given the article in today's NJ Biz that New Jersey area (including the New York Metropolitan area) job losses are outpacing the national addresses. 

As noted on prior job posts. the standard for modifying support is that there has to be a substantial and continuing change of circumstances.  Moreover, in order to get relief, you must document your job search efforts to show the court that you have made a good faith effort to find a new job.

When a client loses their job, the following things should be done:

1. Retain all documentation from the employer showing that the job loss was involuntary.  If there is a severance agreement and any other documentation, that should be maintained as well as the final paycheck showing the severance received (if paid in a lump sum).
2. Keep a detailed log of all efforts made to find new employment with as much information as possible (who you contacted, when you contacted them, what they said, etc.)  If the communications were in writing, keep copies of all emails, resume's, cover letters, rejection letters, if you applied for a job on lie (i.e. Monster.com), confirmation that you applied for work.
3. If the problem is industry wide, any newspaper, trade or other articles or documentation showing that the industry has contracted or is having problems.

The question arises regarding what you do when offered a job that is not consistent with your prior earnings.  If you have been out or work for a short time, this creates a tough decision about whether to take this job or wait.  If you do take this job, my suggestion early after losing a job, my suggestion would be to continue your job search if at all possible.

If you have been out or work for some time and you have made a good faith job search, while possible, I find it hard to believe that a court would penalize someone for taking work - especially in this economy.

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The New Jersey Appellate Division has held that an application seeking to set aside a Property Settlement Agreement (PSA) under Rule 4:50-1 of the New Jersey Rules of Court should be granted "sparingly."  It was this very type of application that formed the basis of the Appellate Division's recent opinion in Heald v. Heald, found here.

The parties were married for 28 years and had 4 children before the Final Judgment of Divorce was entered in November 2006.  They had separated in 2005 and, for a significant period of time, negotiated the terms ultimately encompassed in a PSA, executed in April 2006.  Notably, the parties agreed to use the Husband's 2004 income to determine his support obligations.  The PSA also contained language that the parties were knowingly waiving their right to discovery regarding each other's income and assets.

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Apple Sulit-Peralejo, a partner in our Atlantic City office blogged earlier today regarding counsel fees and bad faith. 

Often counsel fee decisions come down to findings of bad faith and the case law certainly is replete with references to bad faith.  However, when Court Rule 5:3-5(c) was revised about 10 years ago, the standard was relaxed such that bad faith was no longer necessary, but rather, the "reasonableness" of the positions became the standard.  Or did it?  Reading the cases, such as the one cited in Apple's post. a lot of time was spent on the issue of bad faith.

That said, when you see large counsel fee awards, it is usually after a trial.  In my experience, though few cases are tried (about 1 to 2%), when cases get tried, it is because one party's conduct or the positions that the took were so absurd that a finding of bad faith is almost inevitable.

Earlier this week, after a 5 day trial that took place over the better part of a year, my client was awarded $40,000 in legal fees.  In this case, she was the parent of primary residence in the parties' divorce agreement.  She told her ex-husband that she was going to move to Monmouth County from Hudson County with the parties' child, to live with her fiance'.  The husband made a motion for custody, essentially seeking to preclude our client from moving with her child.  The case law is pretty clear that the custodial parent can move within the state of NJ.  After we cited that in our brief in opposition to the motion, he concocted a new argument that he was the de facto custodial parent and the trial followed on this issue.  During the trial we were able to prove that his claim was bogus and that for a very short period of time post divorce when he had the child more than 50% of the time, it was because he violated the Agreement and refused to return the child.  This conduct as well as his lies were simply unreasonable.  Similarly, the Court found that he was actively trying to remove our client from the child's life.  This too was unreasonable.

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Mark Ashton, a partner in our Exton, Pennsylvania office, and the editor of the firm's Pennsylvania Family Law blog, wrote an interesting post on that blog entitled "A Test of Character And A Savings In Cost." To read the post, click here.

Unfortunately, the scenario Mark wrote about is all too common in divorce cases.  Parents often put their children in the middle of financial issues.  How many times to do we hear, as I did as the child of divorce, to "ask your father for it."  Or "I have no money", "I can't afford it, ask your father" or worse yet "your father doesn't give me enough money for this."  I am sure that there are other variations or permutations.  What about when a parent expects to exercise their parenting time (visitation) on the regular days, but there are parties, outings, events, etc. planned for that time.  Does that parent become the bad guy when the child can't go?  Can the other parent do something to make it "alright" for the child to miss an event or do they inflame things by saying "it's your father's fault you cannot go." 

Sadly, these things are typical in divorces.  The people who do it (divorce) right, try to limit this.  The ones that don't risk doing damage to their kids and running up their legal fees.  At the worst end of the spectrum, the conduct can result in parental alienation.

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Mark Ashton, a partner in our Exton, Pennsylvania office, and the editor of the firm's Pennsylvania Family Law blog, wrote an excellent post on that blog entitled "Stock Option Developments."  To read the post, click here.

Stock options have become a large part of executive compensation over the last few decades.  Moreover, they have become common additional/incentive compensation even for non executives who work for large public companies.  We have had to deal with the issue of options both in terms of the division of them in equitable distribution and as a component of income for determining alimony and child support.

Mark's post raises interesting food for thought regarding the issue of the re-casting and/or re-pricing of options, post-complaint. 

Stay tuned for updates as the law develops regarding this topic.

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Mark Ashton, a partner in our Exton, Pennsylvania office, and the editor of the firm's Pennsylvania Family Law blog, wrote an excellent post on that blog entitled "A Reminder That the World of Bankruptcy Has Changed.   To see the full post, click here.

The post reminds us how the 2005 changes to the bankruptcy code affects divorce settlements.  Specifically, divorce settlements are no longer dischargeable in bankruptcy.  Under the prior Act, payments in the nature of support were non-dischargeable but equitable distribution could be dischargeable.  The court would apply a balancing test as to the debtor and former spouse.  That balancing test is now gone.

Very often we still see clauses in property settlement agreements proclaiming that the obligations are not dischargeable in bankruptcy or "are in the nature of support."  Those clauses do not seem necessary anymore. 

Given the current economy, this issue could be one we see a lot.  That said, bankruptcy does not seem like it will provide relief to former spouses.

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Jane Lessner, a partner in our Philadelphia office, wrote an interesting post entitled "How Many are Too Many" on the firm's Pennsylvania Family Law blog.  The addresses legal issues raised by "Octomom" type situations. To see the full post, click here.

 

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David Rasner a partner in our Philadelphia office and Co-Chair of the firm's Family Law practice group, wrote an interesting  post entitled "What Should I Do" on the firm's Pennsylvania Family Law blog.  The post discusses the decision to get a divorce, threats some spouses make when the other mentions a divorce are related issues. The post also concludes that parties should try to settle because a court is simply not the best place to resolve these issues - that the parties with counsel should do so out of court if possible.

To read the full post, click here.

EDITOR"S NOTE:  The final sentiment above is a corollary to the theme in a post that I did last week entitled "Trial Is An Expensive Way to Get a Pound of Flesh."  To see that post, click here.  ERIC SOLOTOFF

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On March 12, 2009, the Appellate Division issued a reported decision in the case if Sweeney v. Sweeney..  RBC Dain Rauscher Inc was also involved in the appeal.  To view the case, click here.

The parties were married in 1991.  In 1999, the wife sold a premarital business and building for $555,000 and kept the proceeds as her separate property.  She invested the proceeds with RBC, signing a standard agreement containing an arbitration clause in the event of a dispute.  The husband was a broker at and he became the broker for the wife's account. He was already
the broker for the couple's joint account and for two accounts held by RBC on behalf of the couple's minor children.

The parties divorce in 2004.  Their divorce agreement does not mention any of the parties' brokerage accounts, but it contains a standard mutual release clause in which the
parties give up any and all claims that each might have against the other by reason of any matter.

In 2006, the wife filed with NASD (now FINRA) a Statement of Claim for Securities Arbitration against RBC, alleging, among other things, mismanagement of her accounts, breach of contract,
breach of fiduciary duty and breach of the duty to supervise. In response, RBC filed in the family court where the divorce was heard a  post-judgment motion to intervene in the divorce action and to stay arbitration. RBC contended that as a result of the Judgment of Divorce, her arbitration claims were barred by res judicata and by the entire controversy doctrine. RBC also claimed that it is a third-party beneficiary of the Judgment of Divorce and that  the release of the husband released RBC. The Wife filed a notice of cross-motion to compel arbitration.

Both the trial court and Appellate Division ruled in the wife's favor.

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When I have an initial interview with a client, one of the common questions that comes up is, “how should I get in touch with you?” Because I am at times up and working early in the morning, or out of the office in court during the day and catching up at night, a common response is, “e-mail.” As we continue to move into the age of technology; when our President has a Blackberry, e-mail is increasingly supplementing phone calls as a way for me to communicate with clients.

Yet there are a couple of important things that have to be considered when communicating electronically with a lawyer. I had previously discussed some of these issues in a previous blog. For instance, it is important to remember that AOL, and other non-web based e-mail servers may place copies of your sent and received e-mails directly onto your hard drive. Therefore, any person in the household who has access to your computer also may also have access to that you may have believed were confidential communications to your attorney. Thus, I always suggest that client’s use a web-based e-mail such as yahoo, gmail or hotmail.

 

Another issue that comes up is the fact that many clients utilize their work computers and e-mail address to communicate with their legal counsel. A unreported non-matrimonial case was recently decided, Stengart v. Loving Care Agency, in which an employee had used her company issued laptop to e-mail her lawyer. Even though she utilized her web-based e-mail address, a temporary file was still stored on the hard drive. Thus, the court found that the employee had waived the attorney client privilege when she used the company’s hardware. Important in that case was the fact that the employee handbook specifically provided that e-mail messages were part of the company’s business records. Also in this particular case, the employee had used the company lap top to communicate with her lawyer about the terms of her resignation from the company.

 

Notwithstanding the particular facts of this case, it is surely the tip of the iceberg floating our way. This is an area of the law in which the technology is moving faster than we can respond. It is imperative that you know what files will be stored on the hard drive of the computer that you are using when conveying information to your lawyer. The lesson to be learned here is that when you have critical confidential information to get to your lawyer, pick up the phone and give me a call.

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On March 10, 2009, the Appellate Division issued a precedential (reported) decision on the issue of the possession of a dog in the case of Houseman v. Dare.  To see the full text of the case, click here.

The parties were together for 13 years.  In 1999 they purchased a house together.  In 2000, they got engaged (but never married).  In 2003, they purchased a pedigree dog for $1,500.  Both parties were listed as the owners on the papers filed with the American Kennel Club.

 

 

In May 2006 Dare decided to end his relationship with Houseman. At that time, he wanted to stay in the house and purchase her interest in the property for $45,000 which was what he represented half of the equity to be. In June 2006, she signed a deed transferring her interest in the house to him.  When she vacated the residence in July 2006, Houseman took the dog and its paraphernalia with her. 

There seems to be little dispute that there was an oral agreement that Houseman was going to take the dog with her as her own when the parties separated.  However, thereafter, she allowed Dare to visit with the dog.  On one occasion in 2007 after watching the dog while Houseman was on vacation, he refused to give the dog back and the lawsuit ensued wherein she sought specific performance of their agreement that she keep the dog.  

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I just completed a 10 or so day trial (really a binding arbitration).  Why did it take so long?  Were there complicated valuation issues? No.  Complicated alimony issues? No.  Custody issues?  No - custody and parenting time were already settled. 

The answer in large part was one party's bad faith and need to extract a pound of flesh.  He did not get his pound of flesh and while we await the decision, I doubt he will receive satisfaction there either?

Some examples of the nonsense.  The case started in 2006 when real estate was at its height and the marital home was appraised by a joint appraiser in early 2007.  The case lingered and trial did not start until the fall 2009.  Despite the fact that the law is clear that homes are valued at the date of distribution, the husband opposed a new appraisal.  Why - as every knows, real estate values were going down.  Since he knew that the wife wanted to keep the house, he was trying to use this to his advantage.  Due to the delays, the wife had to get an updated appraisal in January 2008 when the was originally supposed to occur.  She had to get another one in August 2008 before the trial started.  The husband held out and opposed using the joint appraiser, costing the parties more money for experts and then wasting a day trying the issue of the value of the home.

 

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David Rasner a partner in our Philadelphia office and Co-Chair of the firm;s Family Law practice group, wrote an excellent post entitled "Pre-Divorce Planning" on the firm's Pennsylvania Family Law blog.

The post addresses selecting a lawyer, gathering documents, understanding your finances, determining your goals and priorities, compiling a list of questions to ask at the initial interview, etc.

To read the full text of David's Blog entry, click here.
 

EDITOR'S NOTE:   I like to tell people to gather and make copies of all of the relevant documents they can find (for example tax returns, bank records, credit card records, investment and retirement account records, records regarding major asset purchases, business records if a spouse owns a business),  Once they have the copies, the originals should be returned and the copies kept off site.  It is not unusual for documents to "disappear" once a divorce becomes imminent.

Similarly, despite the obvious and mounting tension, this is the time to ratchet down the angry interactions with the other spouse.   The reason for this is that one of the first questions that is often asked at a consultation is how can I get my spouse to move out.  The answer is typically that unless there is domestic violence, you cannot remove a spouse.  Many people often abuse the domestic violence laws, claiming harassment (where it didn't really occur or was just an argument), to get the other party out of the house.  I often advise people to avoid confrontations, to not raise their voice and to retreat.  A person may also want to purchase a digital recorder to protect themselves from a false claim of harassment.  ERIC SOLOTOFF 

 

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Recently, in the unreported decision of Pacifico v. Pacifico, the Appellate Division reversed a trial court’s ruling establishing that an ex-wife provided sufficient proof to overcome a presumption established by the New Jersey Supreme Court that “current market value as of the time of the triggering event” should govern the value to which the ex-wife could exercise her option to purchase her ex-husband’s one-half interest in the marital home. 

The parties executed a Property Settlement Agreement in December 1996, which was incorporated into the final judgment of divorce. The PSA provided that the marital residence was to be sold upon the youngest child reaching age 19 and that, at that time, the ex-wife had the first option (and then the ex-husband) to buy-out the former spouse’s interest in the home. If neither party wanted to exercise said option, it was to be sold. Once the youngest child turned 19, the ex-husband filed an application to compel the listing and sale of the property. The ex-wife then filed a cross-motion to buy out the ex-husband’s interest at the value determined by a broker’s market analysis in 1996 – long before the ex-wife application. 

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On February 3, 2009, my colleague, Katherine R. Sookhoo, an associate in or Philadelphia office,  wrote a very interesting article on cohabitation in our Pennsylvania Family Blog entitled For Love or Money.  I found the blog interesting for two reasons.  First, the rule of law between Pennsylvania and New Jersey are significantly different.  Second, although different, the difficulty litigants have in either jurisdiction in proving that their ex-spouses are cohabiting is the same. 

Pursuant to the Pennsylvania Divorce Code, divorce litigants are not entitled to alimony if they cohabit after they have been divorced.   However, in Pennsylvania, in cases resolved by way of Property Settlement Agreement, the Pennsylvania Divorce Code provision applies only if the agreement specifically states that cohabitation terminates alimony.

Unlike Pennsylvania, New Jersey statutory law does not prohibit receipt of alimony payments based upon cohabitation.  In New Jersey, while cohabitation may be considered a change in financial circumstances that permits a review and/or a modification of alimony, the fact that an ex-spouse cohabits does not necessarily mean that alimony will be terminated.  Konzelman v. Konzelman, 158 N.J. 185 (1999). 

While Pennsylvania and New Jersey have differing laws regarding cohabitation, both jurisdictions are plagued with the uncertainty of how the Court's define "cohabitation".  In Pennsylvania, there has to be a showing of a financial, social and sexual link, by sharing the same residences.  Miller v. Miller, 508 A.2d 550 (1986).  In New Jersey, the New Jersey Supreme Court  noted that “to constitute cohabitation, the relationship must be shown to be serious and lasting” and that  “a mere romantic, casual or social relationship is not sufficient to justify enforcement of settlement agreement provision terminating alimony upon dependent spouse's cohabitation; such a provision must be predicated on a relationship of cohabitation that can be shown to have stability, permanency, and mutual interdependence” Id.  

Therefore, does cohabitation exist if your ex-spouse and her paramour switch back and forth in sleeping in their respective residences?  If they stay together only on weekends?  If they have resided together for a month?  How about a year?  What if their finances are totally separate? In either Pennsylvania or New Jersey, the answers to those questions are not entirely clear and Courts determine the issues on a case-by-case basis.

Because there is no exact definition of "cohabitation", proving that cohabitation exists may be tricky and requires a thorough analysis of the circumstances before raising the issue in Court.  If a litigant is going to allege cohabitation, before doing so, they should make sure that factually and legally, they have enough to get beyond the "grey" area because (1) if you are going to proceed in Court, you want to prevail; and (2) you don't want to go to Court, lose, and give your ex-spouse the ability to further avoid termination of alimony now that they know your on to the cohabitation.   

 EDITOR'S NOTE:  Apple is absolutely correct regarding the grey areas. That said, there have been a number of unreported Appellate Division decisions over the last year or so that have been more permissive in what amounts to cohabitation.  Specifically, many of the cases suggest that staying together every single night may not be required, and that the location is not entirely important (ie. some nights at her house and some nights at his house.) 

However, once some semblance of cohabitation is shown, unless the divorce Agreement specifically calls for the termination of alimony, and most don't, the next issue to address is the financial interdependence between the former spouse and cohabitant.  Put another way, cohabitation is not enough to terminate alimony in the typical case.  You have to look at the financial impact of the cohabitation.  Eric S. Solotoff

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 We all hear that in bad economies, divorce filings traditionally decrease.   There are many reasons for this, many of which are a subject for another day. Yet a prevalent concern that many of my potential clients express is the fear of the next step financially. Starting over is difficult and indeed overwhelming in the most amicable divorce where the parties both have substantial income. When the money is tight, is adds an additional layer of stress.  Some people mistakenly believe that they simply cannot afford to divorce their spouse.

One of my first questions to a new client is to find out if they have an accountant and financial planner of their own that they trust. If they do not, having them find one is near the top of my “to do” list for that client.   This is because, in most cases, there will be an equitable distribution of assets that have to be invested, whether it be a new home, a new IRA, or a new investment account. My client has to plan for his or her future early on and this may mean very different planning that occurred during the marriage. Even when there is a distribution of debt, there must be consideration of how to best pay that debT. Is a home equity loan appropriate? Should the debt be paid from assets that may not have as much capital gains given the current economic state? What are the tax consequences? These are all issues that need to be discussed with the client and financial specialists.

 

Another concern for many clients is purchasing a new home. For some, it may be the first time they are purchasing a home. Clients are concerned about obtaining a mortgage in these difficult economic times. It seems as if forces are colliding against some clients. For instance, we have all heard that banks are only lending to people with excellent credit scores. Yet during a divorce, many people experience financial stress and their credit rating suffers, often because of the other spouse. So what to do? First, many people do not realize that there are banks that are lending and there are mortgage brokers who cater to people who find themselves in a divorce. Also, rates are down and there are incentives for first time homebuyers. Clients already have most of their financial information ready as a result of the divorce. There are people and banks out there. It is just a bit tougher to find them in these times.

 

At the end of the day, my client has to make the decision that is best for his or her situation.  But I have to make sure that the client has to tools to make the right decision. 

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Last week, I published a blog post entitled "No Hearing Required for Serial Modification Motions." To view that post, click here.  However, released on February 9th was the unreported decision in the case of Cordero v. Mora with a different result. To view the full text of the case, click here.

This case involves the former Major League baseball player, Will Cordero, who was seeking, once again, to reduce his child support obligation for the child of his first marriage.  He played with the Boston Red Sox, Cleveland Indians, Pittsburgh Pirates, Montreal Expos, Florida Marlins and Washington Nationals in the major league for fourteen years. He made a substantial amount
of money during his career. In some seasons he made as much as $6,000,000.  He now claims to be out of baseball, having last played in the Major Leagues in 2005.  He participated in spring training in 2007 with the Mets in their minor league camp but was cut.

Over the years, Mr. Cordero has filed many application to reduce his support. In 2005 resulted in a reduction of child support from $1300 to $800 weekly. The  following year, he sought and obtained another reduction based on a substantial salary reduction.  from $800 to $500 weekly. On appeal,
he argued he should have received a greater reduction.  In June 2007, that argument was rejected by the Appellate DIvision.  However, just prior thereto, the ex-wife filed an enforcement motion and Mr. Cordero filed another motion seeking a reduction.  The judge granted the motion to enforce the existing order. In addition, the judge ordered him to pay $11,999 in arrears within thirty days and denied his motion for a further reduction. The judge noted that plaintiff provided limited and spotty financial information. Based on the information before the court, the judge concluded that plaintiff had the ability to pay the arrears. He also found that plaintiff produced extremely limited information about his efforts to obtain employment and incomplete information about assets that may generate unearned income or can be liquidated to meet his on-going child support obligation. The judge was particularly concerned that plaintiff had not provided an accounting of the millions of dollars he had earned during his professional baseball career.

 

 

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Litigants who get caught lying about their income in their filed submissions to the Court subject themselves not only to denial of their request for relief from the Family Part Judge but they also open the door for problems with the IRS, the State of New Jersey Division of Taxation, the Prosecutor’s office and the Social Security Administration. 

In the recent unpublished Appellate Division decision of Lucci v. Lucci, Defendant ex-husband filed an application in 2008 to permanently terminate his alimony obligation on the basis that his income significantly decreased. Notably, between the time of the divorce in 2000 and the time of the application, Ex-Husband had been successful in reducing his alimony obligation on two separate occasions. First, by consent in 2004, he was able to reduce alimony from $300 to $150 per week. Then, by consent in 2005, he was able to suspend his alimony because he was “unemployed”.  In 2008, he was seeking to permanently terminate his alimony obligation.

Ex-husband stated in sworn Certifications filed with the Court in the 2005 and the 2008 proceedings that he was laid-off of work, went through periods of unemployment and was finally able to obtain employment with much lower compensation. The Ex-Husband also certified that during his periods of unemployment, he received unemployment benefits. 

 

In opposition to the application, Ex-Wife presented the Court with a sworn Certification from a Company that was never disclosed by Ex-Husband.  The Company stated that it had employed Ex-Husband including the period during which Ex-Husband received unemployment benefits, that Ex-Husband misrepresented his employment status to the Court, and that he had earned income in an amount comparable to that which he earned when the Order of support subject to the Motion was filed. The Company further advised the Court that Ex-Husband provided two conflicting Social Security numbers to the Company. Finally, the Company advised that the income reported on Ex-Husband’s tax returns did not include his income from the Company.

 

Ex-Husband’s attorney did not know about Ex-Husband’s employment with the Company.

Not only did the Court deny Ex-Husband’s request to terminate alimony but the Court also wrote a letter to the IRS, State Division of Taxation, the Sussex County Prosecutor and the Social Security Administration.   Moreover, the Court granted Ex-Wife’s request to reinstate alimony at $300 per week effective in 2004 and granted her counsel fees. Despite the fact that Ex-husband was reported to the authorities for what the Court perceived to be intentionally wrongful conduct, the Ex-Husband had the gall to appeal the decision to the Appellate Division.

 

The Appellate Division affirmed the trial Court’s decision with the exception of the effective date of the reinstatement of alimony. The Appellate Division noted that while it was clear from Ex-Husband’s filed submissions to the Court in 2005 that he had provided misleading information, it was unclear whether he provided misleading information in 2004. If Ex-Husband did not provide misleading information in 2004, the Appellate Division noted that the effective date of the reinstatement should be in 2005 when Ex-Husband was required to pay $150 per week in alimony. The Appellate Division directed the trial court to determine the issue after further Court proceedings.

 

The moral of the story is if you get caught lying in submissions to the Court for which you certified under oath that your statements were true, be prepared to not only pay the consequences to the other litigant but you may also have to pay a hefty price to authorities. 

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On January 28, 2009, the Appellate Division issued a reported (precedential) opinion in Kay v. Kay that held that when the estate of a spouse who died while an action for divorce is pending presents a claim for equitable relief related to marital property, the court may not refuse to consider the equities arising from the facts of that case solely on the ground that the estate may not assert equitable claims against the marital estate sounding in constructive trust, resulting trust, quasicontract or unjust enrichment.  This case rejects the holding in Krudzlo v. Krudzlo, a reported trial court opinion from 1990.  To read the full opinion, click here.

The basic rule is that a divorce case abates and no equitable distribution can be had when a spouse dies during the pendency of divorce.  However, there is a Supreme Court case called Carr v. Carr that created equitable remedies for a surviving spouse that would otherwise get nothing where the assets were all held by the other spouse and the rights to equitable distribution and an elective share are unavailable under the law.  This case provided a remedy for what was called the "black hole."

The Krudzlo case held that the estate of a dying spouse could not assert claims for equitable relief against a surviving spouse.

In Kay, there husband died.  At the the time of his death, he had limited assets in his name, insufficient even to pay his legal fees and burial expenses.  On the other hand, it was asserted that the wife had more than $650,000 in assets.  It was also asserted that the wife dissipated marital assets, diverting them to her own name and her daughter.

Given that the court's seek fairness and equity, the Appellate Division held that it was inappropriate to have a blanket rule preventing the estate from making equitable claims.  The Court did not decide the underlying merits of the claim, however. The estate will have the ability to make a claim to prevent the unjust enrichment of the surviving spouse.

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Early on in a case, the lawyer and client will have to determine what experts will be necesary to resolve a case either for settlement or trial.  In fact, at the first Case Management Conference, the uniform Case Management Order requires that you identify the types of experts you need and how they are going to be paid for. 

What is an expert and why do we need them?  Per the Rules of Evidence, "If scientific, technical or other specialized knowledge will assist the trier of fact to understand the evidence or determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education may testify thereto in the form of an opinion or otherwise."  Simply put, an expert is a tool to help determine a fact.  Experts provide information that the parties cannot generally provide themselves.

What kind of experts are used in these cases?  The following are some examples:

• Forensic accountants to value busineses, determine actual income, trace income and assets (including tracing premarital assets), to provide lifestyle analysis, to provide cash flow reports based upon proposed alimony and child support scenarios and a variety of other financial related issues,
• Business valuation experts (sometimes they are not accountants)
• Experts to value stock options or other exployee benefits - often but not always accountants
• custody evaluators - usually forensic psychologists, but occasionally forsensic psychiatrists and social workers, who will give an opinion of custody and parenting time
• educational experts - to determine which school or school district is better, what program is better, public vs. private school issues, educations issues regarding children with special needs
• employability experts  - to determine what someone can and/or should be earning.
• pension appraisers - usually actuaries, to determine the value of a pension, parse out premarital shares of 401ks, and draft Qualified Domestic Relations Orders
• Real estate appraisers
• personal property appraisers
• jewelry appraisers
• art, coin, antique appraisers
• medical doctors - to assess disabilities or sometimes personal injuries
• handwriting experts
• computer forensics
• Interpreting services (for documents in foreign languages)
• experts to value intellectual property

There are probably many other types of experts.  This list does not even include other professionals that may help the parties, but probably not testify, like financial planners, stock brokers, insurance agents, parent coordinators, reunification therapists or for that matter any treating therapists.

Over the years, we have worked with most or all of these types of experts as the need has arisen.  Should an issue requiring an expert come up in one of our client's cases, we are well equipped to handle it.

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Mark Ashton, a partner in our Exton (Chester County), Pennsylvania office and the editor of our Pennsylvania Family Law Blog, wrote an interesting post entitled "Property Settlement Agreements: Be Careful What You Sign Up For", on that blog. 

To read the full post, click here.

The post discusses how the Bankruptcy laws impact on divorce matters.  The bottom line is that while a debtor may be able to avoid all kinds of debts in a bankruptcy proceeding,  if your obligation is to a spouse or your kids, the rules are different and those obligations are going to survive your bankruptcy. The bottom line is that you should make an agreement that is realistic and reasonable, that you can actually pay and not one that you hope you will be able to pay.

 

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My clients often ask “will I get the same thing that my neighbor received in his divorce” or “why can’t my ex share in transportation-- my cousin has to share with her ex” or “my friend earns so much more than me and his support is much lower than mine”. I always tell my clients that as a rule, don’t compare your situation with the situation of someone else. 

While the same laws concerning family law actions are applied to each case, each case is different and therefore, the outcomes are different. It is true that many cases have similar factual patterns but most of the time they are not exactly the same. Using one of the examples above, while someone may be earning more but paying less in support than another litigant, it could be that the ex-spouse of the litigant had other available resources generating income like an inheritance or the ex-spouse could have received more of the family assets as a trade-off for less support. While it is very tempting to compare your situation with that of another person, keep in mind that more likely than not, you are not getting the full story from that person. Also, sometimes misery loves company and it could be that the only part of the story you are getting is what the other person painfully remembers the most.

 

Also important to note is that in New Jersey, the statutory factors for an award of support or for a custody determination are numerous. The Courts apply each factor to the given situation and then completes a balancing of all of the factors prior to rendering a determination. It is in this application of the facts that results in different determinations among cases. Moreover, litigants should also recognize that Judges are vested with a certain level of discretion in weighing the factors which is yet another reason why the outcome of cases differ. 

 

Notably, if one was to review a significant amount of family law decisions published by the Court concerning the same exact issue (child support, alimony, custody, etc.), it is very unlikely that a person would find a decision with the same exact fact pattern as their given situation. 

 

In short, save yourself some frustration and make it a rule not to compare your family situation with that of someone else during a litigation and focus on your facts with your attorney.   After all, as I tell my clients, it is your facts that we will be presenting to the Court and not the facts of your neighbor, cousin or friend.

 

EDITOR'S NOTE:  i once had a client who used to say that no one could believe how much temporary support he was paying and that it was the most anyone ever heard of.  My answer was, "Do they make a million dollars a year like you? No.  Do they make a half a million a year?  No  Do they make $250,000 per year?  No.  The moral is that he was talking to people whose finances had no similarity to his and reacting to their shock.   That goes exactly to Apple's point - while friends and relatives are good for support and a shoulder to lean/cry on, they are not usually a good source of legal advice or information.           ERIC S. SOLOTOFF

      

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Welcome to Fox Rothschild's new and improved New Jersey Family Legal Blog.  You will now receive information and perspective on New Jersey family law issues from the family law attorneys in our firm throughout the state.

The contributors to this blog will be Eric S. Solotoff, Robert A. Epstein and Sandra C. Fava from the Roseland office; Jennifer Weisberg Millner from the Princeton office; and Apple Sulit-Peralejo from the Atlantic City office. The New Jersey attorneys from Fox Rothschild's Family Law Group handle matrimonial and family law matters throughout the entire State of New Jersey. We hope that we can impart to the reader useful information based upon our collective experience.

We plan to provide information on on topics such as alimony, child support, custody, parenting time, divorce, equitable distribution, prenuptial agreements, domestic violence, grandparents visitation, and offer useful tips for readers. This blog can be used as a resource for individuals with New Jersey family law questions and advisors whose clients may encounter family law issues. If there are any topics that you would like us to blog on, do not hesitate to contact us.

We intend on making this an excellent resource for individuals with New Jersey family law questions and advisors whose clients may encounter family law issues. We hope that you will check back often. If there are any topics that you would like us to blog on, do not hesitate to send me an email.  In addition, you can subscribe to our blog.  By doing so, you will get an email when new content is posted.  To subscribe, follow the instructions on the right hand side of the screen.

 

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I am currently preparing for trial in a case in which there is a special needs child. These cases bring another layer of topics to the already crowded plate. No divorce is easy, and when children and custody issues are involved it is more difficult. However, when a special needs child is involved, there are complex issues which arise and which must rise above the parent’s anger, emotions, and anxiety, of the process.  

 First, one primary issue is that of the expenses associated with the child. If the child is receiving governmental assistance, it is imperative that a divorcing parent consult with counsel that is familiar with special needs trusts as well as special education. What is it they say about “the best laid plans???” Parents trying to plan for the future with the best of intentions may create now, a situation which will later impede the child’s ability to qualify for and receive benefits. That having been said, it is critical to anticipate, to the extent possible, the current and short to mid term custodial and financial needs of the child so that an appropriate parenting schedule and amount of support can be set in order to avoid an expensive trip back to the courthouse later in order to make modifications or to obtain an increase in support.

 

Another issue which needs to be addressed is the bona fide day time needs of the child. I was involved in a case several years ago in which the father thankfully realized that due to the severity of his son’s problems, the mother, who was otherwise employable and capable of supporting herself, needed to be available to take care of the child during the day. I have had other cases in which a parent has essentially tried to “exploit” a child’s otherwise minimal disability in order convince a judge that employment outside of the home was impossible. In the vast majority of cases that are filed in New Jersey, both parents have, or will presumably have to work outside the home. In a case when there is a special needs it is imperative to accurately assess the true needs of the child. This may often involve the retention of an expert who is familiar with the particular disability of the child in question.

 

Divorce is stressful under the most “ideal: situation. However, when the parties have a special needs child, it is critical to make sure the parents are considering all aspects which carefully consider the present and future needs of the child.

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I was reading an unreported Appellate Division case released today and gasped when I read the following sentence, " ...Moreover, the permanent alimony figure was negotiated and presumably contemplated defendant's retirement since he was fifty-three years old when he appeared before Judge Piscal on September 19, 2000."  To read the full case, click here.

While the facts in this case may have justified the denial of the former husband's motion to modify alimony, that statement struck a chord.  In this case, the parties were married for 32 years, a long term marriage by any standards.  However, by current standards, we often start talking about long term marriages being 15 years or more and if alimony is appropriate, the discussion is about permanent alimony begins.  Moreover, although there is a well known Appellate Division case authored by Judge (now Supreme Court Justice) Long suggesting that it is better practice to negotiate the issue of retirement, the reality in practice is that it is rare that the party receiving alimony will concede the issue of retirement in the agreement.  Often it is just too speculative.  At best, you may get a recognition that there can be an application for a review upon retirement.

Given that you typically cannot get any concession about retirement and there is no doubt that this was a permanent alimony case, is the above quoted statement a fair or a realistic view?  I don't think so. 

Assume a long term marriage where all assets, including retirement assets are equally divided.  The law is clear that you cannot look to assets divided in equitable distribution for support.  Post-divorce assets can be considered.  If in the 8 or 10 or 12 years after the divorce, after paying alimony and perhaps child support, the payor does not accumulate substantial assets, then what.  What if he bought a new house with his equitable distribution and did contribute the max to his 401k during the post divorce years.  In this economy , the value of the home and the 401k could be down substantially.

More importantly, one would think by this sentence that someone who agrees to permanent alimony can never retire.  This, however, is wrong as a matter of law.  Thus, for a court to determine that a retirement by a person who was age 53 when he agreed to permanent alimony was contemplated in the agreement, is both practically unrealistic and legally incorrect in my opinion. 

That said, as noted above, the denial of the motion to modify under the specific facts in that case made perfect sense.

However, I think it is essential, if possible, to at least get recognition in a Marital Settlement Agreement, that, if nothing else, the issue of retirement was discussed but unresolved to best preserve the issue for another day.

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Mark Ashton, a partner in our Exton (Chester County), Pennsylvania office and the editor of our Pennsylvania Family Law Blog, wrote an excellent post entitled "I Want You To Show How Awful She Is", on that blog.

To read the full post, click here.

NJ allows people to seek a divorce on both fault and no fault grounds.  The fault only gets someone a divorce.  Moreover, even before irreconcilable differences was added as a no fault cause of action a few years ago, and we often proceeded on "extreme cruelty" grounds, no one, other than the litigant's cared about the cause of action.  In fact, at the final hearing, when a party testified about the cause of action, the typical questions were to ask whether the contents of the complaint were true, if you had to testify about them on that day, whether your testimony would be substantially the same, and whether it was unreasonable and improper to require the people remain married.

Moreover, as noted in prior posts, the Supreme Court confirmed in Mani v. Mani that fault does not matter in divorce cases except in extreme cases (i.e. the attempted murder of a spouse.)  That said, like Mark noted in his post, if marital assets were used to further the affair, those assets can be recovered. 

Character does not matter as much as credibility, which is more often affected by someone's conduct during the litigation or just before it if there was divorce planning, than who they had an affair with or how they treated their spouse during the marriage.

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Mark Ashton, a partner in our Exton (Chester County), Pennsylvania office and the editor of our Pennsylvania Family Law Blog, wrote an interesting post entitled "The Bernard Madoff Investment Club.", on that blog.

To read the full post, click here.

There are several things to take from the post.  Know your assets and investment.  Don't just know them, understand them.  Next, save for retirement and make sure your spouse does too.  Next, make sure your investment advisor is insured and transparent.

I am certainly not doing justice to the depth and comprehensiveness of the post.  I urge you to click the link above and look at it yourself.

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I was supposed to start a trial yesterday,but, as often happens, with the judge's assistance, settlement negotiations began.  In fact, in reality, the case probably settled about 3 times yesterday.  However, each time we tried to wrap it up, the wife changed the terms, seeking more and more.  My client, who believed that that he would probably do better at trial, made a business decision to agree to the changes, in consideration for the costs of trial, risks of loss, etc.  That was his call as we were ready  to start the trial and were thoroughly prepared.

On the other hand, on top of changing her terms over and over again, the wife became abusive to her attorney who was trying to counsel her that the terms of the proposed deal(s) were probably far better than she would do at trial.  On top of that, she had major exposure to pay the husband's legal fees based on her conduct during the pendency of the matter (multiple violation of court orders and discovery abuses). 

That gets me to the point of this post.  Opposing counsel was in an impossible position.  He knew that the deal was too good for his client but could not force her to settle.  She is essentially forcing or demanding a trial, which counsel believes is not in her best interests.  His problem became compounded when she became abusive.

At the end of the day, the decision to settle is hers.  The refusal to settle may cost her tens of thousands of dollars.  The attorney fulfilled his obligation and told her.  It may ultimately be an expensive lesson learned.

 

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Mark Ashton, a partner in our Exton (Chester County), Pennsylvania office and the editor of our Pennsylvania Family Law Blog, wrote an excellent post entitled "DIVORCE 101: HOW TO SAVE LEGAL FEES & HOW TO WASTE YOUR OWN TIME.", on that blog.

To view the full post, click here.

There are two major themes of this post.  The first theme, similar to Jane Lessnar's post recently linked to this blog, is that parents should put the children first and think about the children's best interests as opposed ot the parent's rigths or entitlements.

The second theme is to beware of the free advice you get from friends, family members and other third parties.  Sometimes this free advice costs more than legal fees.  Moreover, you are better serve relying on the advice of your divorce attorney who knows both the specifics of your family and the law.

 

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Jane Lessner,  a partner in our Philadelphia office and a contributor to our Pennsylvania Family Law Blog, wrote an excellent post entitled "MERRY ????? HAPPY????? HOLIDAY????" To view the full post, click here.

The point of the post, put much better by Jane than me, is that parents should not ruin the holidays for the children because of their hostility and selfishness.  We see it all of the time.  Motions or Orders to Show Cause (emergent applications) to resolve holidays.  The more parents can cooperate put conflict aside for their children, the better adjusted the children will be. 

Jennifer Weisberg Milner from our Princeton office wrote on this topic last year.  To read her Alert, click here.

Aside from being civil at the holidays, parents should also be civil at events where they will both be present (i.e. graduations, dance recitals, sporting events, bar mitzvahs, communions, confirmations, etc.)  If not, every future happy event could be filled with trepidation if not dread, wondering what the parents will do to ruin the child's happy day. 

Hopefully, parents will remember to put the children's best interests first at the holidays and always.

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The big news this morning was Madonna and Guy Ritchie's $92 million divorce settlement.  With such a large payout, it makes you wonder whether there was a prenuptial agreement in place (if you type that question into Google, you get differing responses), and if there was, if it was disregarded throughout the marriage. 

In any event, prenups are not just for celebrities.  A common type of prenuptial agreement is one where there is a family business, trust or generally a lot of money and property on one side that the parents do not want to get into the hands of the new spouse, no matter what.  In fact, I blogged yesterday on a new reported case where that was the issue.  To see that post, click here.  Sometimes those types of prenups are difficult to negotiate because the spouse with the family money may want to be more generous to the new spouse than his/her family is willing to be.   I have seen this cause great distress on the eve of a wedding. 

Another common theme for a prenuptial agreement is when people get remarried later in life (due to divorce or death of a prior spouse) and they have children who they want to pass their assets to.  Sometimes, both prospective spouses are in this situation.  These are typically easier to negotiate.  The bigger issues in these cases are how will bills be paid, whether there will ever be any joint assets created, and sometimes medical issues - does the spouse or the children make decisions. 

I was recently involved in one of these later in life pre-nups where a big issue was whether the children of an incapacitated spouse could bring a suit for divorce on behalf of their parent.  This was an issue because the non-monied spouse received something different at the other spouse's death vs. divorce.  Depending on where the parties were in their marriage, a maliciously motivated or more like self interested child could seemingly seek to pursue a divorce.  We had to craft language to protect the parties in this event.

Another circumstance where I have occasionally seen a prenuptial agreement, but questioned from the perspective of why the non-monied spouse would ever sign or go through with the marriage.  These are the cases where the parties are reasonably young, where one has more than the other (but not substantially so) or a premarital business which is not particularly successful and the less advantaged spouse is being asked to waive off on virtually all of the assets derived and/or income earned during the marriage, and perhaps also being to waive alimony too despite a clear disparity or soon to be disparity in income.  In fact, the parties plan to have children and the plan was that the non-monied spouse would be a stay at home parent. In one of these cases, the agreement was so unconscionable in my eyes, that I would not continue the representation.  I believe that the client signed anyway.  If there ever is a divorce, I suspect that she will either be very sorry she signed the agreement or will be in for a very expensive legal battle regarding the enforceability of the agreement.

For more information about prenuptial agreements in these or other circumstances, do not hesitate to contact any of the lawyers in Fox Rothschild's family law group.

 

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The U.S. Department of Labor recently issued a new set of guidelines for compliance for what are known as qualified child support orders ("QMSCO"). 

Many employers offer what is known as an employee based group benefit plan.  Simply stated, this is usually health insurance offered at a reduced rate to employees of companies.  Most of these programs are governed by both federal and state law.  The federal law, known as the Employee Retirement Income Security Act (ERISA) is especially pertinent to these employer sponsored group health plans.

A 1993 amendment to ERISA requires employer-sponsored group health plans to extend health care coverage to the children of a parent/employee who is divorced, separated, or never married when ordered to do so by state authorities.  Many states refer to such a court ordered obligation as a "qualified medical child support order".  The group health plan must determine whether the medical child support order is “qualified". 

The recently issued Compliance Assistance Guide released by the U.S. Department of Labor provides general questions and answers about Qualified Medical Child Support Orders, answers questions about National Medical Support Notices and the role of State child support enforcement agencies in obtaining health care coverage on behalf of children, and also lists additional resources that may provide useful information about ERISA and obtaining health care coverage and medical care for children.

To learn more about these guidelines click here.

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Over the years, judges began to make numerous appointments to attempt to, if not rid the courts, at least create a buffer for parenting and visitation issues that arose daily/weekly/monthly in high conflict divorce and post-divorce matters.  Sometimes the professional was called a parent coordinator, other times it was a therapeutic monitor, a mediator, a parenting coach, etc.  The role was generally the same, that is, to present these issues to a neutral third party that had either a legal or mental health background, or both, to assist the parties work out the differences and in many instances, make recommendations if they could not. 

These appointments were being done even though there was no specific authority for the appointments in the Court Rules or statutes.  In April of 2007, the Supreme Court started a parent coordinator pilot program in four vicinages, Morris/Sussex, Bergen, Middlesex and Union. To see the Notice from the Supreme Court and the standard form of parent coordinator Order, click here.

The Court saw the program to serve the following purpose:  "A Parenting Coordinator is a qualified neutral person appointed by the court, or agreed to by the parties, to facilitate the resolution of day to day parenting issues that frequently arise within the context of family life when parents are separated. The court may appoint a Parenting Coordinator at any time during a case involving minor children after a parenting plan has been established when the parties cannot resolve these issues on their own.  The Parenting Coordinator’s goal is to aid parties in monitoring the existing parenting plan, reducing misunderstandings, clarifying priorities, exploring possibilities for compromise and developing methods of communication that promote collaboration in parenting. The Parenting Coordinator’s role is to facilitate decision making between the parties or make such recommendations, as may be appropriate, when the parties are unable to do so. One primary goal of the Parenting Coordinator is to empower parents to develop and utilize effective parenting skills so that they can resume the parenting and decision-making role without the need for outside intervention. The Parenting Coordinator should provide guidance and direction to the parties with the primary focus on the best interests of the child by reducing conflict and fostering sound decisions that aid positive child development."

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In a recent trial court opinion issued by the Superior Court in Hudson County, Judge Gallipoli recognized that parents in NJ may have a right to collect damages for intentional infliction of emotional distress when their relationships with their children are poisoned by former spouses or even grandparents who partake in alienating behaviors. 

In a November 21, 2008 trial court decision, the court recognized the right of one parent to sue another, as well as grandparents, for what is known as the intentional infliction of emotional distress.  In this particular case, the father sued the mother and maternal grandparents because they had alleged that the father sexually abused the children.  The suit alleges that the ex-wife and her parents began alienating the children from the father during the pre-divorce separation in 2006. The defendants allegedly told the children, court-appointed psychiatrists and law enforcement officials that the father was a sex addict and had molested the children in the past, the suit says.  It also says the children are afraid to sleep at their father's home because they have been told they are in danger of being sexually abused.

The wife and her parents denied the allegations and argued in motions to dismiss the suit for failure to state a claim that the Heart Balm Act had eliminated the cause of action of alienation of affection. They argued that the term "alienating the children" is what the complaint calls the alleged wrong.  Judge Gallipoli found that this claim was not a disguised claim for alienation of affections, which was banned in the state in 1935 by what is referred to as the Heart Balm Act.

This is the first time that a NJ Court has recognized the ability to bring such a claim.  A prior suit  was filed in the Morris County Superior Court but dismissed by Judge Rand on the grounds that the suit was nothing more than a disguised claim for alienation of affections.  Noting Judge Rand's opinion in his own, Judge Gallipoli respectfully disagreed with Judge Rand's interpretation of the decisional law in this state and found that a claim existed for these types of behaviors.  Since they are both trial court judges, Judge Rand's opinion was not binding upon Judge Gallipoli.  Judge Gallipoli noted that the father would have to file an application in the family part seeking relief, however his claims against the maternal grandparents would proceed in the law division.

The real question remains as to how the Appellate Division and perhaps even the state Supreme Court will view claims such as these. 

EDITOR'S NOTE:  It seems contrary to notions of judicial economy, mandatory joiner and the entire controversy doctrine that the claims against the mother and her parents would be handled in separate venues. In addition, while there is precedent to bring tort actions related to a divorce in the family part, a party may have a right to a jury on these issues and the cases are often severed and sent back to the law division anyway. 

The bigger question is how a court should handle these claims in a post-judgment situation where there is not an ongoing matter and ultimate trial date pending.  While court's can order plenary hearings post-judgment, it seems that when these issues arise post judgment, the better place for them may be in the law division. 

Also, the theory here that makes the claim viable is not that there has been an alienation of affections, but that a person's intentional act has harmed another, where the only possible remedy for same may be money.   ERIC S. SOLOTOFF

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Previously I blogged about what happens during a family law trial.  To see that post, click here.  In this post, I will discuss what happens during an appeal.

The first question that has to be answered is whether a matter is ripe for an appeal. If the case is still pending and you want to file an appeal, there is no appeal as of right.  The case is called "interlocutory" and you need to file a Motion for Leave to Appeal.  Similarly, in most circumstances, a matter is not ripe for appeal unless the Order or Judgment being appealed from resolves all issues as to all parties.  Motions for leave to appeal are seldom granted because courts do not like piecemeal litigation and it frustrates the notion of judicial economy.  If you are going to file a Motion for Leave to Appeal, it must be filed within 20 days of service of the Order.

For appeals as of right, typically filed when a matter is over, in the case of a divorce, or upon receiving an Order resolving a post judgment motion, these must be filed within 45 days from the date of the Order or Judgment. 

In an appeal, you must show that the trial judge made an error as to the law or the facts.  In fact, the scope of Appellate review is whether the trial judge’s findings could reasonably have been reached on sufficient credible evidence present in the entire record (meaning the evidence and testimony presented to the trial court.) Moreover, the factual findings of the trial judge, his assessments of credibility and the discretionary decisions he may make are entitled to great deference. When the reviewing Court is satisfied that the findings and the result meet the above criterion, they should not disturb the result, even though they may have reached a different conclusion. 

 

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There has been much talk in the news, on family law list serves and in other media that the economy is slowing divorce rates.  In following some of the anecdotal evidence, this may be true in some states and places and not as true in others who report that divorce filings have not changed.  Other than the usual slow down right before the holidays (which is usually followed by the New Years resolution rush of divorce filings), I have not seen much of a slow down.

That said, these times should by necessity to cause people to think out of the box in terms of the usual paradigms that we had been following over the last several years.

Yes the real estate market is down.  That may be good for a party wanting to stay in a house.  Or, maybe parties will consider working together to defer distribution until some future time when the real estate market rebounds.  That may be a fair resolution.  To read a related post on the value of real estate in divorce matters, click here.

Maybe someones income is down or has lost their job because of the unprecedented economic times.  If this is a real loss/reduction of income as opposed to divorce planning, maybe things such as a review of alimony and child support in a year or two or three, may be fair.  Maybe a formula approach may be fair where the support is based upon some base amount of income perhaps higher than someone is earning but lower than the historical income, with a formula to share in income above the base, up to some cap.  While typically a yearly exchange of income information is disfavored, maybe that needs to be considered where income now is not what it was.  To see a related post on this topic, click here.

While it is true that the economy may create challenges, it is not necessarily an absolute impediment from people freeing themselves from what they see as an unhappy if not impossible situation.  Rather, it may take creative thinking, if not a cooperative approach to get to a fair result.

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The Appellate Division issued an interesting unreported (non-precedential) opinion on November 20, 2008 in the case of Freda v. Freda wherein the Court found that it was error for the trial court to not equalize the parties' Social Security benefits.

In this case, both parties were in their 70s and had been married for more than 50 years.  Their means were limited and this was not an alimony case, as they are typically before the Courts.  The wife, however, requested that their Social Security benefits be equalized so that post divorce they both had the same amount of money (the wife's Social Security benefit was $797 and the husband's was $1,400).

Typically, after 10 years of marriage, at a legally appropriate age to collect, a spouse is able to collect based upon their earning record or their spouse's, whichever is higher.  It is my understanding generally that when you collect on a spouse's record, a recipient gets half of what the spouse's entitled would be (this does not reduce the spouse's entitled, however.)

The Appellate Division stated  "We find the trial court's decision unreasonable under the
circumstances of this case where, after fifty years of marriage, the parties should share equally in their joint income as well as their assets."  As a result, the husband was ordered to pay the wife $300 per month as alimony

To view the full case, click here.

The wife's request in this case was one that is seldom seen in these cases and I have heard arguments that such a claim could be preempted by Federal law.  That said, if the amount of/right to receive Social Security is based upon earnings during a marriage, then like a pension, or for that matter any other asset acquired during the marriage, why should it not be divided too?  Perhaps that the answer is that this is not an asset, but rather a right, but that said, the arguments are analogous.  This is definitely food for thought in cases involving long term marriages.

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Mark Ashton, a partner in our Exton (Chester County), Pennsylvania office and the editor of our Pennsylvania Family Law Blog, wrote an excellent post entitled "Trusting the Estate Plan:  How Trusts Work Well for the Happily Married But Confuse the Rights of Those Who are Not.", on that blog.

To view the full post, click here.

EDITOR'S NOTE:  At Fox Rothschild, we have an excellent estate planning department that can assist in these matters.  Eric S. Solotoff

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Recently, my partner, Mark Ashton, in our Exton (Chester County, Pennsylvania) office wrote an excellent post on our Pennsylvania Family Law Blog entitled "How Do Trials Work."  Too see his post, click here.

While much of the trial experience is the same, there are differences in New Jersey practice and procedure.  For instance, in Pennsylvania, it appears that many trials are conducted before a Master, who is a lawyer appointed by the Court to hear matters and make recommendations.  In New Jersey, we try cases in front of Superior Court Judges.  The only exception is when parties agree to try their matter in arbitration - though that cannot be compelled by a Court in a divorce matter.

Trials are rare.  They tell us that about 99% of the cases settle.  That said, after the discovery, appraisals, evaluations, depositions, Early Settlement Panel, mandatory economic mediation and in some counties Intensive Settlement Conferences at the courthouse, if the case is not resolved, trial is the last mechanism to get resolution.

Though each judge is different, many have a pre-trial Order requiring the parties to submit several things to the Court in advance to save precious court time at trial for the actual trial.  These submissions often include a trial brief wherein you set forth a parties position and the law and facts to support it, witness lists, exhibit lists (both for each party and a joint list), and stipulations.  Some judges actually want the actual exhibits in advance too. When we prepare, we typically put our exhibits in binders (4 sets - one for us, one for the judge, one for the other side and one for the witness). 

Stipulations are essentially a list of agreed upon facts that you don't have to spend trial time to establish.  While these are helpful, I have had at least one adversary tell me that he wont do them because it interferes with the flow of the presentation.  I think that ta ht is a valid point, but nevertheless, I try to enter into stipulations when possible. 

When you show up at the courthouse for trial, most judges will want to conference the case to give you one last chance to settle.  In fact, some attorneys show up unprepared to actually try the case because they are counting on this.  That is bad practice because the best way to be prepared to settle a case is to be prepared to try it because you are bargaining from a position of strength. 

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In some cases, either parties will agree or a court will Order the payment for a nanny.  In fact, this is typically in the nature of work related child care which is something that parents are typically required to share the costs of in accordance to their incomes under the Child Support Guidelines. 

A question that is more interesting is for how long must we pay for a nanny.  In hign income cases, perhaps this is less of an issue because it becomes more of a lifestyle issue than work related child care.  In fact, in many cases like that, there is a nanny or nannies even when one parent does not work outside of the home.  That is why I say it is more of a lifestyle issue.

What happens when there is a nanny in a garden variety case where the resources are more limited?   In an unreported Appellate Division case released on November 7, 2008 entitled Herega v. Figueroa that issue was addressed to a certain extent. To see the full text of the case, click here.

In this case, it appears as though the father had custody of the children.  At time of the divorce, both children were not in school full time.  As such, recgonizing a need for assistance, the wife agreed to pay for half of the nanny.

However, the current litigation stems from her motion to cease contributing to the nanny among other things.  There were two major rationales given.  First, she alleged that the father and the nanny were now a romantic couple - indeed sharing the same bedroom.  Second, since the kids were now 6 and 9 and in school full time, she asserted that there was no need for a full time nanny.  In fact, their school offered low cost before and after care.  The husband denied that there was a relationship and otherwise opposed the motion.  The trial court denied the motion.

The Appellate Division reversed and remanded the matter for a plenary hearing (trial) on the issue of whether there was a relationship between the nanny and the husband.  Further, the hearing was to address whether the nanny was still needed given the maturation of the children and the availablity of after care at school.

While not reported, this case remains interesting for the above reasons.  In addition, it is another example of the Appellate Division reminding trial judges that plenary hearings are required when there are important factual issues in dispute.

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Jane Lessner, a partner in our Philadelphia office, wrote an excellent post entitled "What to Tell Your Custody Lawyer" on the firm's Pennsylvania Family Law  blog.

To read the full text of Jane's Blog entry, click here.

EDITOR'S NOTE:  Previously I blogged on "How to Prepare for a Custody Evaluation."  To view that post, click here.  We also have many other posts and custody and visitation/parenting time issue which can be viewed by clicking on the proper link under the "Topics" menu on the right side of the blog page.    Since we update our blog several times per week,  please check back often  for new entries.  Eric S. Solotoff

 

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It used to be that unless a motion had to do with discovery or was a motion for reconsideration, requests for oral arguments of motions were typically granted, without exception.  In fact, if a discovery motion was complex, many judges would grant oral argument.  The same is true about motions for reconsideration.

There has been a recent trend, however, in one of the northern counties in which I practice, where most of the judges deny requests for oral argument, most of the time.  Typically, the statement of reasons in the Order will state that the court did not feel that "significant substantive issues" were raised. 

There has been several recent unreported Appellate Division cases reversing and remanding decisions, in large part because oral argument was not granted.  The most recent was released today.  To see the entire case, click here.  In this case, at issue was whether limited duration alimony should be increased and extended due to special needs associated with one of the parties' children.  Another recent case, coming out of the same county, was reversed because oral argument was denied despite the fact that significant parenting time issues were raised.

In today's case, the motion judge denied oral argument claiming that it is mostly for the benefit of the judge.  The Appellate Division disagreed and reiterated prior decisional law holding that denial of  argument "... deprives litigants of an opportunity to present their case fully to a court. Denial
of such a right, given the issues in dispute, was an abuse of discretion and was violative of both the letter and spirit of ...:"  the Rules of Court. 

Hopefully, if enough of these reversals come down, the practices will change and Courts will again allow oral argument when it is requested.

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Amid all of the news about the economy and the elections, I have come across a new proposed bill in the New Jersey Assembly .  Specifically, proposed bill A-2663 provides that court shall make order respecting custody of domestic companion animals in divorce upon request.  The definition of domestic companion animal includes pets. 

The bill further provides that, "Parties may enter into an enforceable agreement regarding the care or custody of a domestic companion animal that may include: (1) the periods of time during which each party will possess the domestic companion animal; and (2) the financial responsibility of  each party regarding the care of the domestic companion animal.

Though this has come up in my practice before, it is not come up often.  In fact, in a few cases in the past, requests for dog visitation were withdrawn when my client asked for dog support.  However, I have heard of cases where people have actually had dog custody trials.  There are some states and some judges in this state that feel that pets are property.  Perhaps this bill legitimizes the issue.  It remains to be seen, however, what factors a court would consider regarding the custody and support issues. 

To view the bill, click here.  If and when the bill is passed, we will update this blog accordingly. 

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One need only pick up any newspaper, turn on any radio or television or even have water cooler conversation, even with those who never used to speak about the economy, to know of the serious economic crisis that this country and the world appear to be facing.  Even today, we read that the stock markets took yet another tumble based upon the news of increased jobless rates.

These realities will no doubt start hitting the family court system if they have not already begun to hit. Specifically, there will be motions by people paying alimony and child support to reduce their support because they have lost their job or have suffered a significant decrease in income.

In the seminal NJ Supreme Court case of Lepis v. Lepis, the historical standard for a modification of support is the showing of a substantial and continuing change of circumstances.  We also know that temporary changes do not form the basis for a modification. 

In fact, in order to get relief, a litigant usually had to show that they have made a significant, diligent job search and despite their best efforts, they could not obtain comparable employment.  How long this had to be depended on the circumstances, but it was probably more than 90 days, or even more than 6 months. 

The question during these times is have we entered a brave new world.  Will someone who worked on Wall Street earning $500,000 per year who has lost their job be expected to get comparable employment?  Should they?  What about the financial professional whose income is based in large part on either commissions or a large yearly bonus that they always used to carry them for the entire year who wont be getting a bonus this year or their commissions are 50% less than last year? 

In the past, when someones income was sporadic, the case law and Child Support Guidelines require that you take an average of 3 or maybe 5 years.  Is that fair now when doom and gloom about the economy is being predicted?  Put another way, is the 3 or 5 year average indicative of what the payor can really earn in this economy? Will the earn at historical levels during the foreseeable future? 

If we use an average now, or impute the last income earned, is that fair?  Is only the payor being forced to sacrifice in that case (assuming for the moment that they even have the ability to pay the prior support which may be unlikely)? If they are forced to pay support based upon passed income, will they ever get the money back when then show in a year or two or three that their income has not and may never be the same> The answer is that this is doubtful. Is this fair?

While representing the recipient, what choice will attorneys have to argue that the laws of imputation and averaging, as the case may be, must be followed by the Courts?  I do not think that we can argue a deviation from the law, to the detriment of our clients.

On the other hand, attorneys for the payor's have to be bold in their arguments that the existing law is distinguishable based upon the current circumstances.  I also think that Judge's must be courageous in their decisions so that the reflect the economic realities.

If the current economic circumstances are ignored, then I foresee a lot more enforcement proceedings, if not a lot more arrest warrants issue for failure to pay support.  In the end, if things continue as they are economically, attorneys and judges should try to work together, creatively, to strive for fairness for all of the parties based upon the economic realities of today.

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Mark Ashton, a partner in our Exton (Chester County), Pennsylvania office and the editor of our Pennsylvania Family Law Blog, wrote an excellent post entitled "Do I Need A Business Appraiser? And Just What is a Forensic Accountant?" on that blog.

To read the complete post, click here.

EDITORS NOTE:  Forensic accountants are also used in matrimonial cases to reconstruct income, prepare lifestyle analyses (how the people spent their money), to trace income to make sure it is all accounted for, to trace premarital assets to establish exemption or partial exemption, to value stock options and other compensation and for other similar tasks.  In complex cases, forensic accountants, the divorce attorneys and of course, the client, work together as a team.  The key is to select the right expert and there are many excellent ones that we work with.  - Eric Solotoff

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Mark Ashton, a partner in our Exton (Chester County), Pennsylvania office and the editor of our Pennsylvania Family Law Blog, wrote an interesting post entitled "The Owner Know Thy Business" on that blog.

To read the complete post, click here.
 

EDITORS NOTE:  Mark's post leads to a discussion of several interesting issues that are frequently encountered in matrimonial cases.  It is not unusual in cases where one or both parties are self employed that there is either unreported income and/or personal expenses being paid through he business.  In those cases, the tax returns are obviously unreliable for support purposes and you have to get the business books and records, credit card records and other documents to determine the business owner's actual income/cash flow.  I say cash flow because that person is not paying taxes on the expenses being paid through he business and the expenses are not added to that person's income.  In some cases, though there are some personal expenses that are paid through the business, that is neither unusual nor problematic from an income tax perspective.  A perfect example is the deduction of automobile expenses.  While this is acceptable, within limits, per the IRS, those expenses have to be added back to income per the Child Support Guidelines.  In fact, all personal expenses are supposed to be added back.  I have been involved in other cases where the husband was declaring just enough income to pay the mortgage, taxes and utilities on the parties' $2 million dollar house and there was no other declared income apparent to pay their other expenses which amounted to a few hundred thousand per year.  In that case, we had to use a forensic accountant to reconstruct the income through the parties' budget because, there were, surprise, sparse records. 

An interesting question, and unanswered question,  is how these non-taxed expenses should be treated for support purposes.  If some declares $100,000 in taxable income and has another $100,000 in non-taxable perks, what is the income number for support purposes.  $200,000 doesn't seem right because only half is taxed.  A normal, taxpaying citizen may have to earn $240,000 or more to have the same net after tax spending power.

A bigger issue to address which deserves its own separate blog entry is what to do when the case has these issues because of a NJ case called Sheridan v. Sheridan.  The rule as per Sheridan is that when a judge hears evidence of unreported income, they are duty bound to refer the matter to the IRS.  As Mark suggests, filing amended tax returns makes the most sense when confronted with this issue - as long as it doesn't happen too late - as was the case in the example in Mark's post.                        -Eric Solotoff

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In order to determine alimony and child support, the court must know what both parties earn.  In fact, the child support and alimony statute requires the court to look at the parents "earning ability" (in the child support statute) and "earning capacities" (in the alimony statute).  Don't ask me why the terminology is different but the concept is the same.  That is, if someone is not earning up to their capacity, the Court needs to know what they can/should be earning.

This often comes up when one parent, by agreement or otherwise, was a stay at home parent or worked part-time in order to care for the children.  The other instance where this comes up is one someone is a malingerer or otherwise unmotivated to work.  In fact, in a trial court opinion, when discussing imputation of income in one of these situations, there is an amusing reference to a dictionary definition of a parasite.

Notwithstanding, if someone is not working or is only working part-time, the court can and usually should impute income to that party.  Of course, if child care will be needed to replace the care that that parent gave, the court must also assess and offset what appropriate child care would be. 

The New Jersey Department of Labor publishes statistics on wages for numerous occupations, providing statewide statistics and statistics broken down by groups of counties.  In addition, the charts provide the mean, median 25th percentile and 75 percentile of income for the particular job.  To go the the Department of Labor website regarding this information, click here. 

Courts have the ability to take judicial notice of these statistics.  Some judges will - some wont.  In addition, these are merely cold statistics and may are may not provide definitive income regarding what someone can earn. 

Another method of providing evidence of what someone can earn is to employ an employability expert to assess the underemployed party.  Note however, there are some judges who do not allow employability experts, at all.  Of course, in a case where that same judge said that a wife's part time income should be doubled to get to a full time wage for support purposes, the Appellate Division reversed that finding because it lacked evidence in the record to support it.

I have heard other judges say that they do not put much weight to the reports/testimony of any of these experts, though they will permit them.  Just recently, an adversary during a trial objected to the scientific basis of employability experts, seemingly in general (though the expert was permitted to testify and the report was received in evidence).

While I suppose there can be a debate about the science, I for one am a proponent of employability experts, where appropriate.  A good expert will meet with the party, get a detailed history, perhaps do some testing, if appropriate, then do research.  Part of this research typically includes resources looking at job availability in the industry.  They also look at wage statistics such as those set forth above and other sources.  More and more, the experts will do a labor market survey in where they contact employers in the target field to determine whether the candidate would be considered for the job and what the range of pay is.  The good thing about the labor market survey is that it can buttress the statistics.  The bad thing, at least at trial, is that it is a ripe area for damaging cross examination.

That said, employability experts are an effective tool to help the court determine what an unemployed or underemployed person can earn.

 

 

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Mark Ashton, a partner in our Exton (Chester County), Pennsylvania office and the editor of our Pennsylvania Family Law Blog, wrote an interesting post entitled "The Dangerous Trend in Electronics" on that blog.

To read the complete post, click here.

The post, among other things, discusses how people can be bullied by their spouses and significant others by the use of emails and text messages. 

More and more, we are seeing emails and text messages attached as exhibits to motions and as evidence at domestic violence hearings and divorce and custody trials.  As one of my adversaries likes to say, the "E" in email is for eternal.  Put another way, when a person types and sends and email or text message, they create a piece of evidence that can be used against them.  While most of the emails and texts sent each day are benign, more and more we see people act extremely inappropriately using these methods.  Perhaps people are emboldened to be more brash because the communication, while direct, is not face to face.  As such, it seems that almost every week I an suggesting that an email communication be toned down because they may be too aggressive.  I am also telling people to limit the email discussions to factual and/or logistical discussions and not get into the nonsense, even if their spouse is doing so.

I have a case now where we have used a spouses emails against him and yet he continues with his aggressive, belittling and/or outrageous emails.  While this will ultimately provide a treasure trove of information if there is a trial, it also needlessly drives of the hostility and legal fees.  In another recent matter, a spouse was trying to use emails to drive a wedge between his wife and counsel. 

The bottom line is twofold:  (1) no one deserves to be bullied, even via email and text message, and the recipient of this type of abuse should take all necessary steps at self-protection and (2) litigants going through a divorce should be very careful about how they treat the other party in emails and text messages.

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Mark Ashton, a partner in our Exton (Chester County), Pennsylvania office and the editor of our Pennsylvania Family Law Blog, wrote a terrific post entitled "Advice for Troubled TImes in the Market" on that blog. 

To read the entirety of Mark's post, click here.

 

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Mark Ashton, a partner in our Exton (Chester County), Pennsylvania office and the editor of our Pennsylvania Family Law Blog, wrote a terrific post of the valuation of personal property on that blog. 

To read the entirety of Mark's post, click here.

In New Jersey, and probably elsewhere, the last things that judge's really want to get involved in is the division of personal property.  In most cases, the time spent wont justify it.  Some of the ways that personal property issues are resolved are as follows:

1) the alternate selection method (i.e. each party alternates picking until there is nothing left)

2) one party makes two supposedly equal lists and the other party gets to choose the list they want.

I have also heard of cases where, for a particular item or items, the parties had an auction between themselves on the item (particularly when the cannot agree upon a value.)

The bottom line is that these issues are best resolved between the parties, acting reasonably and rationally. 

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One of the hardest questions to answer for a client is "why didn't the judge enforce the Order?" 

Unfortunately, there is no good answer for this question.  Some judges are extremely literal in interpreting an Order and strict with regard to non-compliance.  Others are inexplicably not.

In a matter today where a client who has custody sought sanctions and counsel fees against his former spouse who refused to return the child to him in the state that he now lives after the child's summer visit, the judge's rulings were somewhat contradictory. The mother argued that the Consent Order was only a temporary one but the judge rejected the argument and said that the Order was clearly not temporary.  One would think that that decision would naturally lead to sanctions for interference with a custody Order under the Court Rules and at the very least, would give rise to an award of counsel fees for having to file an emergent application to have the child returned (which was granted when filed and confirmed today).  Wrong.  Despite clear defiance of an Order, including defiance after the mother got an attorney who could explain the legal ramifications of her conduct, there were no repercussions in terms of an award of fees or sanctions. 

I have had other matters throughout the years where the result would have been entirely different.  However, in my experience, once a party knows that a judge is not strident in enforcement, they could become empowered to be even more brash in their defiance. 

With all due respect, this does not serve the legal system.  Moreover, the Court Rules suggest that a party who is forced to file an enforcement motion should be entitled to an award of fees if successful.  From a policy standpoint, they should be made whole because they would not have had to file an application but for the other person's failure to comply with an Order.  One could argue that unless 100% of the fees are ordered, that the belligerent party has gained some measure of victory, or at least, was able to inflict some measure of pain on the other party.  That result is unfortunate and for policy reasons, should not be countenanced by a Court.  Enforcing Orders and awarding a full measure of fees would be a way to remedy this and perhaps prevent future non-compliance.

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Previously, I blogged about the trial in the McGreevey divorce.  In that entry, I wondered whether it was the desire for retribution that was driving the case and whether the legal and expert fees exceeded the matters at issue.  To see my prior post, click here.

The decision of the Court was released yesterday and unfortunately I was right.  As for the one party playing the victim throughout and until the end, that was evidenced by Ms. Matos McGreevey's statement released even before the decision was released. 

As to the decision, it was decidedly in favor of Mr. McGreevey on the major issues raised by his wife.  Whether the issues raised were ever real and bona fide issues, that is another story.  In any event, the trial judge was clearly frustrated with the parties and it showed in her decision.  To read the decision click here.

Some of the highlights of the decision and Judgment of Divorce are as follows:

-There is no obligation to pay alimony.  In fact, the Judge found that to the extent that there was a need for alimony, it was caused by the legal fee debt associated with the case.

-Mr. McGreevey's income for support purposes was $175,000 - approximately $25,000 more than his employability expert opined and significantly more than he claimed he could earn as a seminary student. Child support was based upon that income and his wife's former income (she was laid off just prior to the end of the trial.) The Child Support Guidelines were used and then enhanced slightly due in large part to the fact that Mr. McGreevey was being supported by his partner.  He did not get a credit for the support for his other child because he was not currently paying it.

-The wife's claim for celebrity goodwill did not fly nor did her claim that marital lifestyle should be fixed based upon the lifestyle provided by the State of New Jersey to the Governor and First Lady.

-Each side had to pay their own legal fees. 

-The wife's fees total fees were more than $525,000   after receiving a courtesy discount of approximately $125,000.  Only $50,500 had been paid to date.  Mr. McGreevey's fees totaled $498,000 and he had paid only approximately $170,000. 

Given the costs and the results, could it have possibly been all worth it?  Based upon the Court's decision, it seems unlikely.  That is, unless there was a desire to drag the other through the mud and exact vengeance in a public arena.  If that was the victory sought and received by either or both of the parties, then the system failed.

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Several months ago, I posted a blog entry entitled "All Cases Have a Life of Their Own"  To view that entry click here.  The premise was that while most cases settle, they usually will not settle until both parties are ready, emotionally and otherwise, to move on.  That may be the case even if a party's best case resolution is on the table from the outset.  If they are not ready to settle at that time, they will not.

In a more rare occasion, a party is never ready emotionally to settle and a case just has to get tried.  That is unfortunately the case in a matter that I have that is going to trial next week.  Because of the other party's mind set, my adversary has for many months told me that the case would be tried.  He did not tell me this as a threat or to get leverage - just as a fact.  In fact, a settlement proposal we made has been pending for about a year without a response.  In addition, no bona fide efforts were made by the other side to settle at either the Early Settlement Panel, mandatory economic mediation or the Intensive Settlement Conference.  During the party's recent deposition, he said that "it was too late" to settle, once my client hired an attorney. 

Obviously, this is no consolation to my client who has been eager to try to resolve this matter from the start.   Hopefully, the remedy will be a generous award of counsel fees at the end of the trial to compensate my client for having to endure the husband's conduct which has been nothing short of unreasonable, if not bad faith.

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Following up on our recent blog post addressing how marital fault is not of particular relevance in New Jersey divorce litigation, a front page news story in the August 3, 2008 Long Island edition of Newsday entitled Lawmakers are Split on Divorce focused on New York as the only state without a no-fault divorce option. The article notes that despite support from many New York legislators to develop a no-fault option in New York and the fact that many ordinary couples cannot afford the nasty drawn out divorce proceedings resulting from New York’s archaic law, such laws still face resistance from the Catholic Church and the National Organization for Women-New York State.

A no-fault divorce bill recently introduced to the New York State Senate was not even voted on during the most recent session, but expects to be reintroduced next year for consideration. If enacted, the bill would allow couples to divorce without assigning fault to either party when a marriage is irretrievably broken for at least six months. Prior to obtaining a no-fault divorce, the parties would be required to resolve beforehand issues including equitable distribution, spousal support, child support, legal and other fees, child custody, and visitation.

This proposal would provide couples with an option similar to that seen in New Jersey, which allows parties to obtain a divorce without unleashing the sort of embarrassing testimony revealed during Christie Brinkley’s battle with her ex-husband, Peter Cook. In a similar fashion to New Jersey, the fault grounds would still be available. Based on what has transpired in New Jersey, however, it is likely that parties would more likely turn to the no-fault option as a means for achieving the same end as they previously achieved via fault grounds – namely, a divorce.

It is most certainly time for New York lawmakers to dust off its divorce legislation and provide couples with what is ideally a more amiable and cost effective option for ending a marriage.

EDITORS NOTE:  Since I was a college student in Albany in the 1980s, and probably even before then, the issue of bringing no fault divorce to New York was raised, but never passed. 

Further, while New Jersey seems to be cited as beacon, the irreconcilable differences option in New Jersey is less than two years old. Prior to that, New Jersey's no-fault option required couples to live separate and apart for 18 months with no reasonable prospect of reconciliation.  Since most people did not want to wait, the majority of cases were filed under the fault ground of "extreme mental cruelty."  Aside from airing dirty laundry and causing anger and anguish, it really had little effect.  The reason for this is that at the divorce hearing, the party was asked if the allegations were correct when the Complaint was filed and  if they had to testify about them, their testimony would be substantially the same.  Put another way, at the end of the day, it didn't really matter and the "fault" ground caused unnecessary upset.  Eric Solotoff

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With the slew of recent celebrity or notorious divorces in the news lately (i.e. Christie Brinkley, Jim McGreevey, Bill Murray, A-Rod, to name a few), one would think that adultery and other marital fault is really dealt with in the courts and that people are punished for these actions by a Court. 

Maybe they are in other states, but it is not particularly relevant in New Jersey.  In fact, in 2005, the New Jersey Supreme Court, in the Mani v. Mani case, held that marital fault is irrelevant to alimony except in two narrow instances: cases in which the fault negatively affects the economic status of the parties and cases in which the fault so violates societal norms that continuing the economic bonds between the parties would confound notions of simple justice (examples given were attempting to murder the supporting spouse and deliberately infecting a spouse with a loathsome disease.). . 

This is not to say that the conduct is ignored altogether.  If a spouse spent marital funds on a paramour, the fault  is not considered but the other spouse by may be due a credit.  Similarly, if the conduct impacts on the fitness of a parent and/or the best interests of the children, they can be raised in custody and parenting time proceedings. 

While NJ still has fault grounds for divorce (i.e. adultery, extreme cruelty, desertion, voluntary drug addiction, habitual drunkenness, institutionalism for mental illness, imprisonment and deviant sexual conduct), they are not often plead anymore now that the no-fault "irreconcilable differences" cause of action for divorce was enacted.  That said, even when they are plead, all they get you is a divorce. 

Unless there is a limited issue where this is relevant, leave the seedy mudslinging to the celebrities. 

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Most people have heard or had experience with an attorney who's behaviors were, one could say, questionable.  What most have not considered is what implications an attorney's unethical or questionable behaviors could have on them.

The New Jersey Supreme Court has provided some guidance on this very topic in the recent decision of Brundage v. Estate of Carl V. Carambio.  Carol Brundage hired her attorney to represent her in her claim for palimony against the estate of her deceased paramour.  She probably had very little knowledge of what other matters her attorney was handling in his office.  Little did she know that her attorney, just months before beginning his representation of Carol Brundage, represented another woman, Jeanette Levine, in a different county, but also for a claim of palimony.  Carol Brundage also is likely not to have known that in Ms. Levine's case, the trial court determined that she would not succeed on her claim for palimony because cohabitation was an essentail element for success on a palimony claim, and those parties had not lived together.  Her attorney filed an appeal raising the question of whether cohabitation is an indispensible element of a cause of action for palimony.  (Click here for  Eric Solotoff's blog entry above on the recent Supreme Court decision in that regard).  Carol Brundage never lived with her now deceased paramour.

Her attorney went on to represent Carol Brundage with his appeal on the Levine matter pending. The Estate filed an application to dismiss Ms. Brundage's Complaint claiming that cohabitation was an essential element.  In his representation of Ms. Brundage, her attorney convinced the trial court that cohabitation was not essential and thus the Estate's application was denied.  In his argument, her attorney failed to mention his experience with the trial court in Ms. Levine's case nor did he mention that the issue was pending on appeal.

The Estate then filed a motion for leave to appeal with the Appellate Division.  In opposing that motion, the attorney did not disclose the contrary conclusion reached by the trial court in Ms. Levine's matter or the fact that an appeal was pending.  The Appellate Division denied the Estate's motion and eventually the parties' settled.

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Have you ever wondered what, if anything, happens when an uncontrollable spouse disrupts a settlement conference spewing tirades against his divorcing spouse and/or his/her attorney?  What about when a spouse, unhappy with a judge's ruling on a motion, angrily confronts the adversary in the hallway of the courthouse?  Or when a deposition is abruptly ended because the witness walks out of the room and refuses to return?  Oftentimes these incredulous behaviors go without consequence but that may no longer be the case.

Judge Eduardo C. Robreno recently addressed what the consequences should be for these types of actions in GMAC Bank v. HTFC Corp., 248 F.R.D. 182 (E.D. Pa. 2008).  During the defendant-corporation's chief executive officer's deposition, the witness acted uncivil, hostile and vulgar frustrating and making it nearly impossible or the plaintiff's attorney to elicit legitimate answers.  In reviewing the deposition transcript, Judge Robreno found that despite the claim arsing from a contract dispute, the word 'contract' only appeared 14 times in the transcript as opposed to a certain vulgar four letter word, which appeared 73 times.

When addressing the plaintiff's motion for sanctions, the defendant asserted the defense that he suffered from a mental condition and was experiencing adverse effects to medication taken the day of the deposition.  Counsel for the defendant conceded that his client's conduct was crude and vulgar.  Judge Robreno found that the claim of mental instability did "not justify or mitigate his abusive, obstructive and evasive behavior".  The court granted the plaintiff's motion and ordered defendant to pay the expenses of the attorney's fees in connection with the motion ($13,026.00), deposition costs ($3,685.00) and 75% of plaintiff's attorney's fees at the deposition ($12,610.95).

In addition, the judge found the defendant's attorney jointly and severally liable for $29,322.00 in fees and costs citing that the attorney "failed to interecede and correct (his client's) violations of the Federal Rules," "joined in the offensive conduct," laughed at his client's abusive behavior toward plaintiff's counsel, and basically "emboldened (defendant) to further flout the procedural rules."

The lesson to be learned here is simple - misbehavior in legal proceedings could be extremely expensive not to mention hurt your case.  Neither of which are necessary or worth it.  Despite the stress and frustration that oftentimes accompanies a litigant facing a difficult litigation, such as a hotly contested divorce or custody proceeding, keeping your cool and following your attorney's advice may not only help with your litigation strategy but also save you some money!

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The Appellate Division recently issued a reminder in Ort v. Ort, A-3535-06T1 (App. Div. June 17, 2008) that, unlike a parenting time coordinator, a custody and visitation mediator may only “assist the parties in resolving disputes as to major decisions regarding the children,” and “may not make any recommendation to the court respecting custody or visitation.” 

At issue was a father’s post-judgment motion for a change in the method of delivery of letters, cards and gifts to his eight unemancipated children. During the initial divorce litigation in 2003, the Court had appointed a custody and visitation mediator. After the school attended by one of the children indicated in 2006 that it would longer accept items sent by the father to the child at the child’s school, the father consulted with the previously appointed mediator who, without discussing the matter with either the former wife or children, recommended a neutral site for distribution of the items for all of the unemancipated children. The father filed a motion requesting same, which was denied by the Court. The father than submitted a more detailed letter from the mediator explaining why he recommended the use of a neutral site. After the Trial Court reaffirmed the motion denial on reconsideration, the father filed an appeal based, in part, on the judge’s alleged failure to consider the mediator’s letter.

Affirming the Trial Court’s ruling, the Appellate Division added as a potent afterthought that the Trial Court mistakenly referred to the mediator in rendering its decision as a “parenting coordinator.” The Appellate Division then cogently distinguished a coordinator from a mediator, indicating that the mediator, unlike the coordinator, may not make custody or visitation recommendations to the court. It also made clear that, even if the mediator there was actually a coordinator, that he had not engaged in best practices by making recommendations without having previously consulting with both parents and the attorney for the children.

Ort serves as a refresher on the core principle that a custody and parenting time mediator must try to resolve outstanding issues between the parties by maintaining neutral throughout the course of the mediation process. This is accomplished by ensuring complete confidentiality and instilling in the process a sense of what the Appellate Division has previously referred to as “trust and confidence.” For a mediator to make recommendations as that seen in Ort not only poses an “inherent conflict” by going beyond the bounds of the mediator’s essential role, but it also demonstrates a tainted bias in favor of one party over the other – in other words, exactly what a mediator should not be doing.    

As the Appellate Division said in Isaacson v. Isaacson, 348 N.J. Super. 560, 578 (App. Div. 2002), mediators are “critical to the administration of justice in the Family Part.” The same can obviously be said of parenting coordinators upon whose recommendations judges greatly rely. It is therefore vital that these roles remain separate so that each may perform its own role unclouded by the other’s obligations towards facilitating an effective resolution for the parties involved.

To read the Ort case, click here.

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In a recently published Superior Court opinion, a Monmouth county judge found that unauthorized discovery in a post judgment matter is inadmissible and against the rules of discovery in a matrimonial matter.  In the matter of Welch v. Welch, the defendant filed a post judgment application for a change of custody of the parties' minor child.  His application was based upon his concerns for the plaintiff/mother's mental well being and hence ability to properly care for the parties' child.  Two days prior to filing his motion seeking a change in custody, defendant's attorney issued a Subpoena Duces Tecum and Ad Testificandum upon the Marlboro Township police department.  This subpoena requested copies of all documentation pertaining to incidents related to the plaintiff as well as requesting the appearance of an officer on the return date of the motion to possibly give testimony.  Plaintiff's counsel filed a motion to prohibit the release of these documents, alleging the request was made in violation of the Court Rules and also sought sanctions against defendant and his attorney as well as counsel fees.

Ultimately, the court refused to consider any of the documents turned over by the police department asserting that the documents had been obtained in violation of court rules.  The court also assessed counsel fees against the defendant but did not issue sanctions.

The court based its reasoning, in part, upon the notion that discovery is limited in post judgment applications.  The court found that without the scheduling of a plenary hearing or any further proceedings, defendant's subpoena was unnecessary, harassing and impermissible.  The court went on to state that "post-judgment matrimonial motions are summary in nature and are resolved with little or no discovery." 

What is troubling about this trial court decision is the fact that in contested post judgment custody matters, how can a court ignore the admissibility of relevant evidence? Does that not contradict the court's main objective, which is the child's best interest? What about the court's parens patriae duty to protect children?

The decision appears to be inconsistent with the  the Appellate Division's 2002 holding in Tartaglia v. Paine Webber, Inc., which held that illegally obtained evidence in a civil matter  was admissible (though a party could be sanctioned for illegally obtaining it).  On a final note, police records are public records.  Is the court's finding in Welch punitive, insomuch as defendant was assessed counsel fees for issuing a subpoena for the release of what is public record.

It should be noted that the finding in Welch pertains only to post judgment matters.  Discovery in pre-trial matrimonial cases remains broad (See R. 5:5-1).  It would not be surprising if this case is appealed. 

 

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Frequently in divorce, and I am sure many other cases, there are diverging versions of an event.  Often that is caused by the fact that people have a different perception of events.  Maybe it is a Mars/Venus thing when it comes to husband/wife relationships.  in these cases, both people honestly believe their version of events.

Then again, there are people that just lie, including lying under oath. 

A client that I was speaking to today asked me how "they" can get away with lying.  She was talking about her husband and his counsel.  The fact that litigants are not always truthful is a sad fact.  The fact that their counsel was not truthful is eminently worse.

Lawyers have an ethical  duty of candor to the court and fairness to the other side.  That means that you cannot make misrepresentations to a court or opposing counsel.  It means that you cannot omit clearly important information when there is a duty, expectation and obligation to provide it.  You should not cobble together out of context parts of a trial record in an attempt to mislead an appellate court.  You should not stay silent if you told your adversary that the case was settled and then your client backed out. You should not make representations to a court that simply are not true.  Sadly, it happens too often and undermines litigants' confidence in the system.  It also results in absurd squabbling which can take time away from dealing with the real issues in the case.  There are ethics committees to deal with these issues and hopefully there is a remedy for such flagrant dishonesty.

For litigant's, perjury is still a crime though this author has never seen a divorce litigant referred to a prosecutor for perjury.  However, at trial, these lies, when inevitably debunked, go to destroy a party's credibility.  Often, cases are won or lost on credibility determinations.  In addition, the lying can lead to a finding of bad faith, which leads to counsel fees. 

These cases can be difficult enough when even when every one is on the up and up.  So don't lie.  

 

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Custody evaluations are very important in determining child custody and access during contested divorce proceedings. Divorce courts give considerable weight to the recommendations of the evaluator. In addition, the participates are usually extremely nervous about the process.

As such, before an evaluation, I try to meet with my clients to let them know what to expect.  I also try to give them some basic guidelines as to how to act. 

Below are some guidelines that will assist a person to prepare for your custody evaluation with the expectation of ending your custody battle.

• Arrive on time at your custody evaluation interview.
• Dress neatly and conservatively.
• Be honest. The custody evaluator will likely check out your statements with collaterals and/or other sources.
• If the custody evaluator chooses to use psychological testing, ABSOLUTELY answer honestly. The tests are designed to detect defensiveness and lies and unless you are an expert in psychometric testing, you are unlikely to fool them.
• Be sincere. The custody evaluator can usually detect over embellishment and insincerity.
• It's all right to be nervous; most people are.
• It's all right to cry and/or show emotion; many people do.
• Answer questions directly and to the point.
• Make sure you pay attention to what the evaluator is asking.
• Take your time when answering a question. If you do not understand what is being asked, feel free to ask the evaluator to explain what he/she means.
• If the custody evaluator asks that you provide additional documentation, do so as promptly as possible or communicate any concerns about getting it.
• If you provide the custody evaluator with names of collateral contacts, it is a good idea to inform them in advance that they may be contacted so that they can prepare to speak on your behalf.
• If the custody evaluator is observing you with your child(ren), be attentive to their needs and focus on their interests and not yours.
• Present yourself as being reasonable and placing the concerns of your child(ren) above all.
• Relax and let the best aspects of your personality come out (patience, humor, concern for the child(ren)’s well being, etc.)

The following is a list of things to avoid doing during a custody evaluation
• DO NOT speak badly of your spouse/partner unless the custody evaluator asks you to comment on what you perceive to be the problems between you.
• DO not make threatening comments about your spouse/partner or anyone else to the evaluator.
• DO NOT harass the custody evaluator with phone calls.
• DO NOT drop by the evaluator's office without an appointment.
• DO NOT call the custody evaluator to see if the report is completed.
• DO NOT prep your child(ren) to say negative things about their other parent. The custody evaluator has ways of telling if this has happened.
• Custody evaluators recognize the stress people are under during this process and take this into account when assessing family members.
• If you are feeling stressed and anxious, it is all right to acknowledge it and allow the custody evaluator to help allay some of your concerns.

The following is a list of things that the evaluator is looking for:
• Empathy (the ability to understand what the children are feeling and the willingness to react appropriately)
• Setting appropriate boundaries
• Proper environment and proper care providers
• A loving relationship between you and your child(ren)
• Behavior supportive of the relationship between the child(ren) and the other parent
• Behavior which demonstrates that you are striving to keep the child(ren) insulated from the conflict
• Lack of hostility toward your spouse. (Speak of past problems in a matter-of-fact way, indicating that you these things behind you)

 

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Natalie Famous, an associate in our Bucks County, Pennsylvania office, wrote a terrific post on who gets the family photos  on the Pennsylvania Family Law Blog.

To see the post, click here. To view the Pennsylvania Family Law Blog, click here or at the link to the right of the page.

As to personal property issues in general, aside from avoiding the fight about these issues, if that is not possible, make sure that everyone knows exactly what is being divided.  We have a case where despite the fact that most everyone would think that the use of terms such as "bedroom set", "dining room set" and "living room set" meant simply the furniture in those rooms, a party is taking the position that  those definitions include all the sheets and bedding, all of the floor coverings, all of the wall coverings, all of the serving pieces, etc. in the dining room furniture, and worse.  There have been numerous motions where the husband continued to complain that he did not get his belongings.  Only after his greater inquiry, including his deposition, did we learn what he meant.  While I have my own beliefs as to whether the way the husband is litigating is a tactic to upset the wife and run up her fees, the better practice would have been (this was done by the firm that previously represented my client)  to specifically list each piece of furniture so such discrepancies never come up. 

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Charles Meyer, a partner in our Montgomery County, Pennsylvania office, wrote a terrific post on High Conflict Custody matters on the Pennsylvania Family Law Blog that he edits.  The principles in this post apply to New Jersey cases.

To see the post, click here.  To view the Pennsylvania Family Law Blog, click here or at the link to the right of the page. 

I often tell my clients, that though they may wish to stoop to their spouse's level, that it just isn't worth it and certainly not in the children's best interests.  Moreover, if the case is going to be litigated, I want my clients to be "pure as the driven snow" with regard to these issues. 

That said, I think that each client going through a custody case should keep a notebook documenting things as they go on.  Moreover, save and print provocative emails and text messages and make tape recordings of voice mail messages for future use.  As to recordings of conversations, given wiretap and privacy issues, those will be discussed in more detail in a future blog post, and you still must proceed with care. 

 

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I have eagerly awaited the news accounts each day of the ongoing saga of the former first family of the State of New Jersey. 

While by all accounts, there is some exceptional lawyering going on, one cannot help to think that this is a case that should have been settled or that one or more of the parties is using the trial to settle personal vendettas. 

Thankfully for the parties' child, they settled custody and parenting issues.  However, as the judge admonished at points in the case, their daughter is going to be able to read all about her parents' divorce by just typing hers and their names into Google.  And for what?

 While their marital lifestyle was perhaps unusual from the common folk, in both financial and other ways, at the end of the day, this was a short marriage. The testimony from both as reported suggests that there was no savings and few assets.  The disputes as to alimony seem absurd because even if there was a viable claim, how much could it have been for.  The legal and experts fees had to have exceeded the claim. 

Again, I don't know all of the facts and only know what I read.  However, I always tell my clients that you don't want to spend $10 in legal fees to get $5 back.  I wonder at the end of the day whether the battling McGreeveys will have done just that.  If so, that is good for no one - even the lawyers.  Moreover, I hope that the trial was not a vehicle for either to get the last of their 15 minutes of fame while at the same time, preventing parties with real issues from getting their day in court.

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Keith R. McMurdy, a partner in our New York office, wrote a terrific piece on Civil Unions and Tax Implications on his Employee Benefits Blog.  There was reference in the article to New Jersey issues.

To view the article, click here.

To view his blog, click here.

 

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There is a not too uncommon phenomenon that is frequently seen in divorce cases.  Specifically, as soon as the notion of a divorce action become a reality, many supporting spouse's incomes suddenly, and usually without valid explanation, drop substantially.  It may come as no surprise that someone may want to manipulate their income when an alimony or child support obligation is about to be set.  This affliction is sometimes known as "R.A.I.D.S." or Rapidly Acquired Income Deficiency Syndrome (sometimes also known as "SIDS"  Sudden Income Deficiency Syndrome.) 

That is not to say that there are not valid, legitimate and explainable deviations in someones income.  Some people are in commission sales and one year is legitimately better than another.  Perhaps someones income is tied to real estate.  That person may have a legitimate reason why 2007 and 2008 are down years.  Mortgage bankers are probably having trouble now as are realtors.  I recently had a case where if you looked at my client's tax returns and W-2s, one would think that support should have been based upon a seven figure income as opposed to a mid-six figure income.  In this case, there were some discrete one time payments from exercises of stock options and change of control of companies that he worked for.  These are not the situations I am talking about.  In fact, when there is non-recurring income, it may be legitimate to back it out for purposes of computing support or else the support would not be fair to the payor.  When income legitimately fluctuates from year to year, the Child Support Guidelines and decisional law suggest taking an average (3 or 5 years is common). 

The cases that I am talking about are those where there is no explanation for the sudden drop in income.  Very often, this occurs when the supporting spouse is self employed.  There are many ways income is hidden.  Sometimes, it is just not collected - as possibly evidenced by a large rise in accounts receivable.  Sometimes, there may be several capital expenditures or large equipment purchases, which reduce the profits and thus the income.  Other times, perquisites or personal expenses paid by the business increase dramatically.  Check the business credit cards - they are often illuminating in this regard.  Cash is also a possibility as are other manipulations with payments received.

In these cases, discovery is critical to smoke out the true income and real reason for the alleged reduction in income.  The use of a forensic accountant is often essential to get to the correct income number.  

RAIDS is certainly an illness that can be diagnosed and with the proper team of lawyers and experts, cured so that the supported spouse is treated fairly. 

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One of my pet peeves is litigants and lawyers that use custody and parenting time issues as a bargaining chip to get better a better financial settlement.  I have several matters ongoing now where that is occurring.

In a recent case, both in negotiations between the parties directly, and in negotiations with opposing counsel, we were told that the proposed resolution of a hotly contested parenting time issue for far less than had been demanded was fine but only as part of a global settlement including the finances.  Put another way, they were only going to resolve visitation if my client made financial concessions.  The bad faith of the tactic was evident.

In fact,  in New Jersey, there is really little interplay between the parenting time and the finances other than some child support adjustments made for the number of overnight visits.  This does not even really come into play in high income cases that exceed the Child Support Guidelines.  That said, since parenting time and custody issues are based upon the best interests of the children, most would agree that you should not negotiate these issues based upon money.  However, it comes up all to frequently, often to the detriment of the children and at a great financial and emotional cost to the parties. 

The system in New Jersey is set up to try to smoke out and resolve these bogus parenting and custody issues early in the case.  At the outset of a case, the parties are required to attend a Parent Education program given by each county.  After that, the parties are required to go to mandatory custody and parenting time mediation, usually with Court staff, unless there is a domestic violence restraining order in effect.  Only then, do you get into custody and parenting evaluations with experts, etc.  Also, this is all completed at the outset of the process, long before discovery is over, and often before it is even started in earnest.

A familiar scenario of the bad faith custody dispute that I have seen a fair amount as of late is as follows:  one parent is the traditional stay at home parent - the other is the Type A executive type that leaves the home at 6 a.m. and doesn't return home until 7 p.m.  Sometimes, that person travels substantially for business as well.  The stay at home parent has been responsible for all medical and dental visits, haircuts, play dates, teacher conferences, etc. The divorce starts and the  parent that works out of the home demands either custody or a 50-50 parenting arrangement. 

In these cases, absent mental health issues or other extraneous circumstances, the demand is one that is typically made either because there are control issues or as a bargaining chip.  That is not to say that there are not times where this parent should not get custody, because there are and I have gotten custody for these types of parents. 

That said, when these issues are made for bargaining, if the matter does not settle in mediation, the next step is custody evaluations by a forensic psychologist. If the parties cannot agree on a joint expert or the Court does not appoint one expert, there can be two experts.  The children are now made part of the process and have to meet with the expert several times.  Their teachers may be contacted.  Their doctors and therapists may be contacted.  The parties' therapists may be contacted.  Other collateral sources may be contacted (neighbors, coaches, family members, etc.)  The price to pay on the family, aside from the legal and expert fees, is high - especially when the issue is for bargaining only.

Don't get me wrong.  I understand that there are good faith custody and parenting disputes that require this process.  While the toll is still the same, that may be unavoidable.  However, if the issue is not a "real" one, I would hope that people would not use it improperly as a bargaining chip.  The collateral damage may be great.

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Previously I blogged about the fact that cases have a life of their own and will only settle when both parties are ready.  As I was trying to settle a case today that is scheduled to start trial in Morris County next week, I was reminded of a related issue.

In this case, we have had a hard time getting the other side to negotiate.  They have taken a position that we don't think is reasonable nor supported by the facts or the law.  That said, we have made proposals to try to resolve the case.  In fact, at each time we have been required to negotiate (at the Early Settlement Panel, mandatory economic mediation (several sessions) and at an Intensive Settlement Conference), we have made proposals.  In some ways, it was against my normal practice to not bid against myself, but the client wanted to at least try to stir some movement. 

At each point, rather than provide a counter proposal, the other side has tried to wow us with, to put it nicely, "fuzzy math" in order to justify why they are right and we are wrong.  They have never, however, moved off of their proposal on support in any significant way. 

I finally had to tell the opposing counsel to just give me a number without the explanation or argument because I wasn't going to buy their theory, ever, and the theory didn't make a difference if the number was acceptable.

In fact, this is not unusual when trying to settle matters.  That is, sometimes the theories and explanations will bog things down.  The bottom line is that if  the parties agree on the number or a certain resolution of a non-financial issue, in many instances, it matters not at all how or why you got to that number.  In fact, the explanation may just start the argument again. 

Sometimes, it is more important to just give a number than explain how you got there.  If the number is fair and within the realm of reason, and the parties can live with it, it is sometimes better to be settled then win the debate which may only prove more costly.

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I urge you to check out our partner, David Draganosky's (from our Montgomery County, PA office)post on the PA Family Law Blog entitled "Client's Can Help - 14 Tips for a Client Going Through Divorce."  It is an excellent piece on how client's can assist in their case as well as maintaining a good attorney-client relationship.

You can go right to the blog by clicking here or directly to the post by clicking here.

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    In the case of Julie Greely v. Sean Greely, on March 19, 2008, the Supreme Court of New Jersey , the Supreme Court held that a plaintiff cannot unilaterally dismiss a matter if the other party has answered and further, that a party who started the law suit in New Jersey cannot then claim that New Jersey is an inconvenient forum.

     The parties were married in Omaha, Nebraska in 1989. In 1995 the parties moved to New Jersey with their infant son. Shortly thereafter they had another child. In June 2006, plaintiff, wife, filed a  complaint for divorce. The defendant husband, who had moved back to Nebraska, responded. The parties engaged in discovery and a court-mandated early settlement panel conference. 

     In the meantime, plaintiff also moved back to Nebraska. On March 28, 2007, plaintiff filed a unilateral stipulation of dismissal without prejudice. The very next day, plaintiff filed a complaint in a Nebraska court seeking the same relief as in the New Jersey case. 

     Defendant’s New Jersey counsel immediately asserted that plaintiff’s purported unilateral “stipulated” dismissal of the New Jersey complaint for divorce was a nullity, and requested that plaintiff withdraw that stipulation.    Plaintiff refused. Defendant moved to reinstate the answer.

   The trial court found “that the stipulation of dismissal was filed in violation of R. 4:37-1(a) and shall be vacated.” It also rejected plaintiff’s “suggestion” that the New Jersey complaint for divorce be dismissed under the doctrine of forum non conveniens. Plaintiff appealed.

   The Appellate Division reversed the trial court, finding that “New Jersey has no further interest in this litigation since both parties have moved out of State, the children now reside in Nebraska and neither party owns property in this State.” The panel provided, however that the UCCJEA “governs litigation over custody issues” and that “the parties may use discovery and evidence derived from the New Jersey action in another state’s action.”

    Defendant petitioned, and the Supreme Court granted certification. The Supreme Court reversed the Appellate Division, and reinstated the trial courts decision.

     R. 4:37-1(a) permits two [and only two] processes for the voluntary dismissal of cases: (1) unilateral dismissals by filing a notice of dismissal at any time prior to service by the adverse party of an answer or of a motion for summary judgment, whichever occurs first; and (2) consensual dismissals by filing a stipulation of dismissal specifying the claims or claims being dismissed, signed by all parties who have appeared in the action. Thus, plaintiff’s purported unilateral stipulation of dismissal was and remains a legal nullity. 

    The trial courts rejection of plaintiff’s forum non conveniens as to non-custody matters was proper for reasons stated by the court. While the custody matters are governed by UCCJEA, which provides that a “court of this State that has jurisdiction under this act to make a child custody determination may decline to exercise its jurisdiction at any time if it determines that it is an inconvenient forum under the circumstances and that a court of another state is a more appropriate forum.” N.J.S.A. 2A:34-71(a). It also clearly provides that “the issue of inconvenient forum may be raised upon the court’s own motion, request of another court or motion of a party.” Id.

   While at the end of the day, Nebraska may very well be the most convenient jurisdiction to hear some or all of the issues, it seems apparent that parties simply cannot avoid the rules and exercise self-help to obtain a desired result.

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The process for seeking Innocent Spouse Relief, a provision for individuals concerned about the accuracy of tax returns filed by their current or former spouses, has become a potential minefield.

In June 2007, the IRS published a revised Form 8857 - Request for Innocent Spouse Relief. Prior to that time, the form was short and simple. This one-page form asked the name and address of each taxpayer, whether the relief seeker had been a victim of domestic abuse and feared that filing a claim would result in retaliation, if the IRS had determined an underpayment of tax, and whether the understatement was due to erroneous entries by the spouse. (see note 1) The new form, however, is four pages long and the questions are far more in-depth. Given the possibility for self-incrimination, the form must now be completed with great care.

Often, when preparing a party's financial statement or budget for a divorce action the conversation turns to tax returns. When the parties involved lack substantial debt - consumer or otherwise - and yet still cannot explain how spending exceeded the level of income and asset draw downs, the accuracy of tax returns is brought into question. Often, and particularly in divorce cases, one spouse was not aware that the tax returns were inaccurate when filed. In such cases, that party may be entitled to Innocent Spouse Relief from the IRS.

So how does it happen? How can a spouse not know that the tax return was inaccurate when it was filed? Didn't the spouse sign the return under penalty of perjury? Some common answers clients may give include: 'It was April 15 (or August 15, October 15 if on extension) and my spouse shoved the tax returns in front of me and told me to sign them because we had to get them in the mail that day,' 'I trusted my spouse that the returns were right and just signed them,' 'My spouse told me they were correct, and I signed them,' 'I have no idea of the finances, my spouse handles everything,' and so on. On occasion, 'My spouse forged my name' also has been used.

During divorce actions, it is not uncommon for parties to still file joint tax returns. Hopefully, this is done after the non- or lesser-earning spouse has had his or her attorney and accountant review the returns. Also, it is common that Indemnification Agreements are signed to protect one spouse from the inaccurate income reporting and/or improper deductions taken by the other spouse. However, the agreements are only binding between the parties, not with the IRS or state taxing authorities.

What should a spouse or former spouse do when the IRS comes calling and he or she really did not know that the tax return was inaccurate? It goes without saying that the individual should immediately contact his or her attorney and tax professional - especially now that the new form asks for more and deeper personal information.

The new form asks for more and deeper information than the original, much of which appears as if it could trigger the trap door precluding Innocent Spouse Relief. Worse yet, the responses to many of the questions could possibly be self-incriminating, which is why representation is essential.

Some of the new questions seek the following information:

-your highest level of education
-whether you were a victim of spousal abuse during the years that you are seeking relief (and further asks for a description and documentation such as police reports, restraining orders, doctor's notes, etc.)
-whether you signed the returns, and if so, whether you were forced to sign under duress, threat of harm, etc., or if your signature was forged
-whether you had mental or physical problems both at the time the returns were signed and at the time you are filing the form (and documentation is requested)
-how involved you were in preparing the returns and whether you reviewed them before they were signed
-whether you were concerned that the returns were incorrect or incomplete when they were signed, and, if so, whether you just said nothing or made inquiry
-what you knew about your spouse's income when the return was signed; and further, if your spouse was self-employed, whether you helped with the books
-when the returns were signed, whether you knew that tax was due, and if so, how you thought the tax was going to be paid
-whether you were having financial problems when the returns were signed
-your involvement in the household finances during the years you seek relief, including whether you had access to information and decision-making power regarding finances
whether your spouse ever transferred any assets to you
-a listing of your monthly income and expenses

Since the form has to be signed under penalty of perjury, a wrong answer not only could preclude granting of Innocent Spouse Relief, but also could be used to assert - if not prove - tax fraud given a person's knowledge and involvement when the returns were filed.

The bottom line is that great care should be taken when completing this form.  A person seeking to do so should consult with an attorney and tax advisor, in advance, so as to not incriminate themself. 

 

 

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Some times, despite all of the parties' best efforts - or in other cases, where one or both parties have no desire to settle, a case has to be litigated.  Trials are costly, for reasons you would think of, and also, for reasons that most people don't consider.  A good rule of thumb is that for each day of trial, there will be one or two days of time for preparation.  When you consider that both parties have to testify, as well as accountants, business appraisers, custody evaluators, real estate appraisers, employability experts, as well as a whole host of lay witnesses depending on the issues involved in a case, the actual known costs can be substantial. 

The hidden costs are the time spent waiting around.  Often times, you may be in the Courthouse from 8:30 a.m. to 4:30 p.m., and with interruptions, other matters and breaks, you only get a 3 or 4 hours per day of trial time.  Additionally, it is not uncommon for trial dates to not only be non-consecutive, and sometimes, there are several weeks if not months between dates.  I am currently in the midst of a trial where we had one half day in October 2007, another half day or less in January 2008 and another date scheduled for April.  Each time you go back, you have to re-prepare. 

While some cases that require a decision need to be arbitrated because the parties may not want to present certain issues to a Court, other cases that require a decision may be good candidates to avoid the above delays.  Often with arbitration, you can select days if not weeks in blocks thus condensing the time that the process takes.  In addition, without the interruptions that you will inevitably have in a court, the time spent at the arbitration can actually be spent arbitrating.

In advance of the arbitration, the parties can decide whether they want it to be binding (i.e. essentially, what the arbitrator decides goes) or whether there is a right of appeal.  The parties can decide whether then want a court reporter present or not.  The parties can even designate the scope of an appeal.  While the arbitration act provides a very limited scope of review, parties can agree that the decision can be appealed for the same reasons as could a judicial decision be appealed.  However, in what was made clear in a 2007 reported decision, the parties cannot confer jurisdiction to hear the appeal on the Appellate Division. Rather, the matter would have to be decided by the trial judge.  Click here for a copy of the case.

I recently completed a more than 10 day arbitration and the experience was extremely positive, for all of the reason expressed in this post. 

In any event, while there could be added costs associated with paying an arbitrator and court reporter, if the arbitration can be done more efficiently, if not more quickly, than a trial, it is a viable option in the right case. 

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While statistically, 99% of all cases settle, some cases take longer than others to get there.  Moreover, some cases require the assistance of a third party to help one or both party or attorney get past whatever it is that is holding the case up from resolving itself.

I, for one, have been skeptical of mediation in a number settings.  The first is at the onset of a complex matter where one party is pushing for mediation and there hasn't even been the most basic exchange of information at that time, much less formal discovery.  I have even seen cases where the party with the documents will not provide them in advance of mediation and will only bring them to mediation and take them with him at the end.  The second setting that gives me cause for pause is when parties attend mediation without counsel and there is a great imbalance of power between the parties (consistent with the imbalance of power that permeated the parties' relationship).  In these instances, unless there is a strong mediator that will protect the disadvantaged spouse, I have often seen such mediations result in a "settlement", but one where the disadvantaged spouse got a "deal" that was neither fair nor reasonable, if not unconscionable.  The problem in these cases is that often, once there is an "agreement", the person that got the great deal refuses to concede anything.  Thus, a method meant to avoid litigation can often create litigation. 

However, in this day and age in New Jersey, the court mandates mediation at two junctures of the case (unless there is a domestic violence restraining order.)  The first is early on in the case when the parties go to custody and parenting time mediation conducted by court staff.  This is meant to ferret out the true custody dispute.  That said, I make sure that my client is prepared before they attend this mediation because it often results in a resolution of the issues and I want that resolution to be one that my client actually has considered in advance and is comfortable with.  As such, we often prepare a parenting plan, in advance, which deals with the regular parenting time, legal custody, holidays, vacations, etc.

The second mandatory mediation is economic mediation which takes place after an Early Settlement Panel.  Attorneys usually are required to attend with clients.  This is often the time when a case that is more than your run of the mill case will settle.  By this time, it is expected that most, if not all of your discovery will be done. Unlike the Early Settlement Panel where the panelists have a short time to consider the issues, the mediator can spend more time to flesh them out and more importantly, facilitate a dialogue and negotiation. 

In some cases, the impartial voice of the mediator helps one or both parties get past an issue that they are stuck on.  Put another way, when either the client's attorney has told the client time an again of a probable result, or if the attorney is presenting the strongest position regarding an issue as an advocate, the mediator, who has no axe to grind, may be just what is necessary to put the issue to bed.  In other cases that I have seen, sometimes one of the attorneys doesn't handle exclusively family law matters and/or is otherwise less confident.  In these cases, the mediator essentially can let the attorney know that the deal is fair.

I have been involved in cases where the parties were more than $20 million apart and seemed headed for a trial that would have lasted several months.  However, after 8 to 10 days of hard work at mediation, the case settled, saving both parties tens if not hundreds of thousands in legal and expert fees that would have been incurred at a trial.

The bottom line is that most people truly want to settle their cases in a fair way.  We always hear anecdotally that cases that settle come back to court far less often than cases that are tried.  We also hear that people that settle their cases are far more satisfied with the result than if they tried the case.  In a trial, the litigant gives up control of their life to a judge that doesn't know them and will only hear bits and pieces of their story - along with the hundreds of other cases they have.  Mediation with a skilled mediator, where the playing field is level, the parties both have all necessary information and the imbalance of power is kept in check, is excellent way to keep control of your life and resolve your matter in a fair and beneficial way.

Check back for future entries regarding arbitration and trial practice.  While most cases do settle, if litigation is required, we are skilled at handling matters that require a trial, as well.

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In a recent unreported Appellate Division decision, the Court decided that a trial court judge abused his discretion by sanctioning the defendant's attorney for failure to appear at an Early Settlement Panel, where his client, the other party and opposing counsel had appeared.  At first this may appear to be odd result but the facts of the case make it more clear why the result is just - and that a little courtesy by all involved could have prevented what turned into this debacle.

This case was pending in Middlesex County.  On the day in question, there had been extensive rainstorms and a portion of a major traffic artery in the New Brunswick area, was closed. Defendant's attorney was caught in the resulting traffic jam so at approximately 9:30 a.m. he called his office and had them contact the chambers of the presiding judge of the Family Part to advise of the delay. As counsel did not have plaintiff's counsel's cell phone number, and, believing the judge's staff would advise her of the delay, he did not call opposing counsel's office. When by 10 am, the traffic issues had not improved, defendant's counsel called the presiding judge's chambers directly and asked that the matter be rescheduled.  The judge's law clerk granted this request and counsel returned to his office.  No one, however, told plaintiff's counsel.

After 10:00 a.m., she called defendant's counsel's office and was told that he was running late. Shortly thereafter, she called again and was told that he had been released by the judge and was on his way back to his office. Plaintiff's counsel called a third time and actually spoke to defendant's counsel - requesting that he return to the Courthouse.  When he refused, she made a application to another judge (the presiding judge was out that day), for counsel fees.  

 The judge noted that he had spoken to the presiding judge's secretary "after the call," and knew counsel was stuck in traffic, however, he noted that the "only people that can grant an adjournment o[n] a matter that's set down for an ESP is either [the presiding judge], who's not here, his secretary . . . or me, the ESP judge." The judge determined defendant's counsel's excuse for his non-appearance was "inadequate," and he granted the application for counsel fees in the amount of $1100. 

The Appellate Division, however, held that the trial judge failed to properly follow the procedures governing a contempt citation, and that defendant's counsel's behavior was, under the circumstances, not contumacious or without just excuse.  The Order for fees was reversed.

The moral of this story is that all could have been avoided with a healthy dose of courtesy and communication all around.  Defendant's counsel should have called his adversary's office or had his staff do it - both to advise of the delay and then of the adjournment.  Moreover, if the traffic had abated by then, he could have returned to the Courthouse where everyone was waiting.  Plaintiff's counsel could have been more understanding of the problem caused by extreme weather conditions coupled with the fact that someone in the presiding judge's chambers had granted the adjournment.  Perhaps there could have been better communication by the Court staff that granted the adjournment so that the rest of the people waiting would not have waited as long. 

We should not lose sight that courtesy to our client's,  their spouses and opposing counsel - especially is unique circumstances, is required.  It would not be surprising if events of that day cost each party more than the $1,100 in dispute.  And it may have all be avoided with just a little more courtesy and communication. 

For a copy of the case click here.

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Inevitably, at every consultation I have, a prospective client asks me two questions, near and dear to them, which seem like easy questions - or so they thought.  The questions are (1) how long with this take and (2) how much will it cost.

I am certain that the answer, "it depends" is seldom satisfying.  In fact, several years ago, the Court instituted what is called Best Practices in family cases, partially in response to these two issues. 

As to the first question, the easy answer is that pursuant to Best Practices, the Court wants each case resolved within 365 days.  That, however, is not the end of the story.  Many factors go in to how long a case with take.  In some cases, people actually settle before a Complaint for Divorce is even filed and the parties can be divorced in a few weeks.  However, if a trial is actually required, 365 days is unlikely, especially in counties that lack judicial resources. 

In other cases, a party can make their best offer, they can even offer the other side's best case scenario on day one, and the case wont settle for weeks or months.  Why is that.?  Because all cases have a life of their own.  While it is easy for the lawyer to tell our clients to treat the financial issues as a business decision, the reality is that client's often find that to be easier said than done.  Rather, because this is a dissolution of a marriage for some, the breaking apart of a family for others, the death of hopes and dreams for yet others, or worse, it is difficult to remove the emotion from the process.  Why doesn't someone take a great deal on day one - they are often just not ready emotionally to move on.  While the system creates deadlines and there are legitimate means that one can use to try to move the matter forward, sometimes, you just have to wait a little for the emotions to subside.

In other cases, you may not settle quickly because you just don't have enough information.  In those cases, you may not know whether it is a great deal or not.  Some cases will settle quicker than others if both parties act reasonably, try to put aside (if not forget) the emotions, treat each other with respect, and more importantly, want to settle (i.e. be willing to make compromises).Of course, the statistics show that 99% of the cases settle.  Moreover, it is a rare day when a client doesn't say to me that they want to settle amicably.  More often than not, at least at first, amicably is measured on their terms only, without regard at that time for the concept of what might be fair and equitable to the other party   An often heard axiom is that you know a settlement is a fair one if both people walk away a little unhappy. 

Other factors that can delay a case is a party's refusal to cooperate with discovery or Court Orders.  Sometime, opposing counsel is a factor in delaying the case, either because he or she is not responsive, or perhaps for some other improper motive.

For the same reason that cases can take longer than others, they can also cost more than others.  I have been involved in cases with parties having substantial income(s) and assets which have settled quickly and inexpensively.  How does that happen - the parties acted in good faith and were motivated to settle.  I have been involved in other cases where the parties incomes were modest, yet despite all possible efforts to convey reasonableness, they insisted on behaving badly and/or litigating such that the legal fees were quite large. 

The bottom line is that the length of the case and cost of the case are often dependent upon the conduct, emotions and reasonableness of the parties. 

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